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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
AGED CARE LEGISLATION AMENDMENT (SERIOUS INCIDENT
RESPONSE SCHEME AND OTHER MEASURES) BILL 2020
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Aged Care and Senior Australians,
Senator the Hon Richard Colbeck)
AGED CARE LEGISLATION AMENDMENT (SERIOUS INCIDENT
RESPONSE SCHEME AND OTHER MEASURES) BILL 2020
OUTLINE
The Aged Care Legislation Amendment (Serious Incident Response Scheme and
Other Measures) Bill 2020 (the Bill) amends the Aged Care Act 1997 (Aged Care
Act) and the Aged Care Quality and Safety Commission Act 2018 (Quality and Safety
Commission Act) to introduce a Serious Incident Response Scheme (SIRS) for
residential aged care and flexible care delivered in a residential aged care setting. The
Australian Government has no tolerance for abuse and neglect in aged care.
The Bill implements key recommendations in the Australian Law Reform
Commission's report Elder Abuse - A National Legal Response and the Review of
National Aged Care Quality Regulatory Processes by Ms Kate Carnell AO and
Professor Ron Paterson ONZM. The Bill is also consistent with the National Plan to
Respond to the Abuse of Older Australians and aims to address issues raised in the
Counsel Assisting's final submissions to the Royal Commission into Aged Care
Quality and Safety. A prevalence and feasibility study is currently being undertaken to
inform future Government decisions on the potential introduction of a SIRS in home
and community aged care.
The SIRS introduced by the Bill is similar to the incident management and disclosure
protection scheme added to the National Disability Insurance Scheme Act 2013 in
2017, with amendments to address specific needs of aged care.
The SIRS will replace current responsibilities of approved providers of residential
aged care and flexible care delivered in a residential aged care setting (approved
provider) in relation to reportable assaults and unexplained absences in the Aged Care
Act. The Bill will require approved providers to manage incidents and take reasonable
steps to prevent incidents, including through implementing and maintaining effective
organisation-wide governance systems for management and reporting of incidents of
abuse and neglect.
The Bill will also require approved providers of residential care and flexible care
delivered in a residential aged care setting to report all serious incidents to the Aged
Care Quality and Safety Commission. A wider range of incidents, including
unreasonable use of force, unlawful sexual contact or inappropriate sexual conduct,
psychological or emotional abuse, unexpected death, stealing or financial coercion by
a staff member, neglect, inappropriate physical or chemical restraint, and unexplained
absence from care will be reportable. The SIRS will also remove the existing
exemption for reporting assaults where the alleged perpetrator is a residential aged
care recipient with a cognitive or mental impairment and the victim is another care
recipient.
The Bill will also strengthen protections for people who disclose incidents of abuse or
neglect in aged care. These protections will extend to both existing and former staff
members as well as current and past residential aged care recipients, their families and
others supporting them including volunteers and advocates. The Bill will protect
people disclosing such failures against any civil or criminal liability.
1
The Bill will also expand the Aged Care Quality and Safety Commission's
(Commission's) powers to enforce the requirements of the SIRS and the
responsibilities of approved providers and related offences more generally. These will
include standard regulatory powers which provide the Commission with a more
graduated suite of powers for ensuring compliance and protecting consumers.
An additional information gathering power will also ensure the Commission is able to
obtain the information and documents it requires to administer the SIRS, and the
Commission's regulatory framework more broadly.
FINANCIAL IMPACT STATEMENT
The Australian Government's total investment in the SIRS is $67.2 million.
REGULATION IMPACT STATEMENT
The Department of Health has certified the Review of National Aged Care Quality
Regulatory Processes (the Carnell and Paterson Review) undertook a process and
analysis similar to that required for a Regulation Impact Statement. The Carnell and
Paterson Review is available at the end of this explanatory memorandum.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
AGED CARE LEGISLATION AMENDMENT (SERIOUS INCIDENT
RESPONSE SCHEME AND OTHER MEASURES) BILL 2020
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The Aged Care Legislation Amendment (Serious Incident Response Scheme and
Other Measures) Bill 2020 (the Bill) amends the Aged Care Act 1997 (Aged Care
Act) and the Aged Care Quality and Safety Commission Act 2018 (Quality and Safety
Commission Act) to implement a Serious Incident Response Scheme (SIRS) for
residential aged care and flexible care delivered in a residential aged care setting.
The Bill will strengthen the responsibility of approved providers of residential aged
care and approved providers of flexible care delivered in a residential aged care
setting under the Aged Care Act to manage incidents and take reasonable steps to
prevent incidents, including having effective organisation-wide governance systems to
identify, record, manage and resolve all incidents affecting the health and welfare of
aged care recipients. It will also require approved providers of residential care and
flexible care delivered in a residential aged care setting to report all serious incidents
to the Aged Care Quality and Safety Commission (the Commission). It will require
approved providers to report a wider range of incidents, including unreasonable use of
force, unlawful sexual contact or inappropriate sexual conduct, psychological or
emotional abuse, unexpected death, stealing or financial coercion by a staff member,
neglect, inappropriate physical or chemical restraint, and unexplained absence from
care.
The Bill will also strengthen existing protections against retribution or vilification for
reporting such incidents by expanding the scope of protected disclosures and
protecting a broader range of individuals.
The Bill will also expand the Commissioner's powers to enforce the requirements of
the SIRS and the responsibilities of approved providers and related offences more
generally. These will include standard regulatory powers which will provide the
Commission with a more graduated suite of powers for ensuring compliance and
protecting consumers.
An additional information gathering power will also ensure the Commission is able to
obtain the information and documents it requires to administer the SIRS, and the
Commission's regulatory framework more broadly.
3
Human rights implications
The Bill engages the following rights:
the right to protection from exploitation, violence and abuse - Article 16 of
the Convention on the Rights of Persons with Disabilities (CRPD),
the right to an adequate standard of living - Article 11(1) of the International
Covenant on Economic, Social and Cultural Rights (ICESCR), and Article 28 of
the CRPD,
the right to health - Article 12(1) of the ICESCR, and Article 25 of the CRPD,
and
the right not to be subjected to cruel, inhuman or degrading treatment - Article 7
of the International Covenant on Civil and Political Rights (ICCPR), and
Article 15 of the CRPD.
Right to protection from exploitation, violence and abuse
The Bill engages the right to protection from exploitation, violence and abuse in
Article 16 of the CRPD by implementing measures to protect aged care recipients,
who may have impediments to their full and effective participation in society. The
Bill requires effective management, response to and resolution of incidents affecting
the health and welfare of vulnerable aged care recipients. This reflects that the
Australian Government has no tolerance for abuse and neglect in aged care. The Bill
identifies types of reportable incidents including physical, sexual, psychological or
emotional abuse, inappropriate physical or chemical restraint and neglect to be
reported to the Aged Care Quality and Safety Commission (the Commission).
Stealing or financial coercion by a staff member, unexpected deaths and unexplained
absences from care are also reportable incidents. The Bill also allows the
Commissioner to issue infringement notices, injunctions or apply to a court for civil
penalties. Through these enforcement provisions, the Bill promotes Article 16 of the
CRPD by implementing measures to protect aged care recipients, who may have
impediments to their full and effective participation in society, from exploitation,
violence and abuse.
The Bill's requirement for aged care providers to identify, manage and resolve
incidents of abuse and neglect suffered by aged care recipients also promotes
Article 16 of the CRPD. The Bill introduces arrangements that will require aged care
providers to implement appropriate measures to respond, such as promoting the
physical, cognitive and psychological recovery of persons in residential aged care
who become victims of exploitation, violence or abuse. The requirements relating to
incident management and reportable incidents and the additional compliance and
enforcement powers the Bill confers on the Commission help implement the
commitment for effective legislation to ensure that such instances of exploitation,
violence and abuse are identified, investigated and, where appropriate, prosecuted.
Right to an adequate standard of living
The Bill also engages the right to an adequate standard of living under Article 11(1) of
ICESCR and Article 28 of the CRPD. The Bill introduces arrangements that promote
the right to an adequate standard of living by taking steps to reduce the instance of
abuse occurring in residential aged care settings. The SIRS will strengthen measures
to prevent infringement of the quality of care provided to aged care recipients. Under
the SIRS additional measures are introduced to respond to, learn from and prevent
incidents from reoccurring. The Bill promotes the right to an adequate standard of
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living by aiming to reduce the occurrence of incidents, therefore providing continuous
improvement of living conditions for individuals in residential aged care.
Right to health
The Bill also engages the right to health under Article 12 of the ICESCR and
Article 25 of the CRPD. These articles refer to the right of individuals to the highest
attainable standard of physical and mental health. The Bill promotes the right to
health by providing greater protections to the physical and mental health of
individuals in residential aged care. The SIRS will expand reporting requirements to
broader instances of abuse and neglect and will introduce more robust requirements
for governance systems to ensure better reporting, management and prevention of
instances of abuse and neglect in residential aged care environments. The Bill also
promotes the right to health by providing the Aged Care Quality and Safety
Commissioner with additional powers and functions to proportionately respond to
incidents and therefore ensure the ongoing health, safety and wellbeing of individuals
in residential aged care.
Right not to be subjected to cruel, inhuman or degrading treatment
The Bill also engages Article 15 of the CRPD and Article 7 of the ICCPR. The
protections in the Bill requiring providers to identify, manage and resolve abuse or
neglect of aged care recipients promote Article 15 of the CRPD and Article 7 of the
ICCPR by ensuring such people are not subjected to cruel, inhuman or degrading
treatment.
In the Bill, approved provider has a responsibility to manage incidents and take
reasonable steps to prevent incidents, including through implementing and
maintaining an incident management system. Regardless of whether a serious incident
is alleged, suspected or a known occurrence, these incidents are reportable incidents
for the SIRS. This promotes Article 15 of the CRPD and Article 7 of the ICCPR by
ensuring that individuals subjected to cruel, inhuman or degrading treatment have
their case promptly, impartially examined by competent authorities. Further, the Bill
strengthens protections for people who report abuse or neglect in a residential facility
to cover a broader range of people, including both existing and former staff members,
as well as current and past residential aged care recipients, their families and others
supporting them. These changes are necessary to ensure those who witness or suspect
that cruel, inhuman or degrading treatment is occurring do not face repercussions,
such as civil or criminal liability, for making such reports. This also promotes Article
15 of the CRPD and Article 7 of the ICCPR by ensuring that persons are not
prevented from reporting cruel, inhuman or regrading treatment, and therefore
allowing it to continue without investigation or remedial action.
Conclusion
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The Bill is consistent with human rights because it promotes the protection of human
rights of aged care recipients by implementing measures to ensure greater protection
from exploitation, violence, abuse and cruel, inhuman or degrading treatment. The
Bill also implements measures aimed at ensuring individuals in residential aged care
have the highest attainable standard of physical and mental health and adequate
standard of living free from neglect and abuse.
Circulated by the authority of the Minister for Aged Care and
Senior Australians, Senator the Hon Richard Colbeck
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AGED CARE LEGISLATION AMENDMENT (SERIOUS INCIDENT
RESPONSE SCHEME AND OTHER MEASURES) BILL 2020
NOTES ON CLAUSES
Abbreviations and Acronyms used in this explanatory memorandum
Aged Care Act means the Aged Care Act 1997;
Commission means the Aged Care Quality and Safety Commission, as
defined in section 7 of the Aged Care Quality and Safety Commission
Act 2018;
Commissioner means the Commissioner of the Aged Care Quality and Safety
Commission, as defined in section 7 of the Aged Care Quality and Safety
Commission Act 2018;
Quality and Safety Commission Act means the Aged Care Quality and
Safety Commission Act 2018;
Quality of Care Principles means the Quality of Care Principles 2014;
Regulatory Powers Act means the Regulatory Powers (Standard Provisions)
Act 2014;
Rules means the Aged Care Quality and Safety Commission Rules 2018;
SIRS means Serious Incident Response Scheme.
Clause 1 - Short Title
Clause 1 sets out how the new Act is to be cited - the Aged Care Legislation
Amendment (Serious Incident Response Scheme and Other Measures) Act 2020.
Clause 2 - Commencement
This clause provides a table setting out the commencement dates of the new Act.
Item 1 of the table provides that new sections 1 to 3, and anything in the Act not
covered elsewhere in the table, commence the day the new Act receives Royal Assent.
Item 2 of the table provides that Schedules 1 and 2 of the Act will commence on
1 April 2021, or the eighth day after the Royal Assent, whichever is later. This will
allow time for subordinate legislation to be made and registered before
commencement of Schedules 1 and 2. Item 3 of the table provides that the Schedule 3
will commence immediately after the commencement of the Federal Circuit and
Family Court of Australia Act 2020 or immediately after commencement of
provisions in table item 2, whichever is later. However, the provisions in Schedule 3
will not commence at all if the Federal Circuit and Family Court of Australia Act
2020 does not commence.
Clause 3 - Schedules
This clause provides that each Act that is specified in a Schedule to the Bill is
amended or repealed as set out in the applicable items in the Schedule concerned, and
any other item has effect according to its terms. This is a technical provision which
gives operational effect to the amendments contained in the Schedules.
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SCHEDULE 1 -- INCIDENT MANAGEMENT AND REPORTING
Part 1 - Main amendments
Aged Care Act
Item 1
Item 1 inserts new paragraph (e) into subsection 54-1(1). New paragraph 54-1(1)(e)
introduces an additional responsibility for an approved provider of residential aged
care or flexible care delivered in a residential aged care setting in relation to the
quality of the aged care. The new responsibility is to manage incidents and take
reasonable steps to prevent incidents complying with any other requirements specified
in the Quality of Care Principles. This includes through implementing and
maintaining an incident management system that complies with the requirements
specified in the Quality of Care Principles.
The Quality of Care Principles will specify requirements relating to the management
of incidents, the process and procedure requirements with a focus on preventing
re-occurrence. It is appropriate to include these matters in delegated legislation to
ensure that there is the ability to promptly respond to unforeseen implementation
issues and sector feedback and ensure there are timely responses to matters affecting
the wellbeing of residential aged care recipients.
Item 2
Item 2 inserts new sections 54-3 to 54-8 into Division 54 of the Aged Care Act. New
section 54-3 introduces and defines new terms for the reporting of certain incidents
under the SIRS. New sections 54-4 to 54-8 establish robust protections to ensure
disclosers are supported and protected in making disclosures of information. These
protections are intended to promote integrity and accountability of approved providers
in providing supports and services and to safeguard care recipients.
New Section 54-3 - Reportable incidents
New section 54-3 sets out what reportable incidents are for the purposes of SIRS and
how these reportable incidents are to be dealt with. The intent of the SIRS is to reduce
the risk of harm arising from abuse and neglect of older Australians in residential
aged care, including flexible care delivered in a residential aged care setting, by
driving learning and improvement at a service and system level to reduce the number
of preventable incidents in the future.
New subsection 54-3(1) provides for the Quality of Care Principles to specify
arrangements relating to the notification and management of reportable incidents.
The Quality of Care Principles will identify who will have the responsibility to report
reportable incidents and to whom reportable incidents must be reported (the
Commissioner). The Quality of Care Principles will also specify the timing
requirements for the notification of reportable incidents (see new
subsection 54-3(6) below).
New subsection 54-3(2) defines the term reportable incident as any of the following
incidents that have occurred, are alleged to have occurred, or are suspected to have
occurred to a residential aged care recipient, in connection with the provision of
residential care, or flexible care provided in a residential setting:
unreasonable use of force;
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unlawful sexual contact or inappropriate sexual conduct;
psychological or emotional abuse;
unexpected death;
stealing or financial coercion by a staff member of the provider;
use of physical restraint or chemical restraint, other than in circumstances set
out in the Quality of Care Principles;
neglect; or
unexplained absence from the residential care services of the provider.
Paragraph 54-3(2) states that for an incident to be a reportable incident it must have
occurred, or be alleged or suspected of occurring in connection with the provision of
residential care or flexible care provided in a residential setting, to a residential care
recipient of an approved provider. A residential care recipient is defined in new
subsection 54-3(3). The SIRS relates to residential aged care and flexible care
delivered in a residential aged care setting, and this definition ensures that application
of the arrangements is limited to these care types. This is intended to ensure that the
SIRS complements, rather than duplicates, other responsibilities. Reporting under the
SIRS is a responsibility of approved providers and includes matters upon which the
approved providers of residential aged care and flexible care (where care is delivered
in a residential aged care setting) are required to identify, record, manage and resolve.
New subsection 54-3(3) defines the term residential care recipient. A person is a
residential care recipient of an approved provider if:
the person is receiving residential aged care or flexible care in respect of
which the provider is approved; and
either:
o subsidy is payable for the provision of care to the person; or,
o the person is approved under Part 2.3 of the Aged Care Act as the
recipient of the care.
New subsection 54-3(4) provides for the Quality of Care Principles to define or clarify
some of the incidents listed in new subsection 54-3(2). This provision enables the
Quality of Care Principles to provide clarification of these terms and may include
examples of reportable incidents. New subsection 54-3(4) does not allow for the
Quality of Care Principles to define or clarify the use of physical or chemical restraint
of the residential care recipient (other than in circumstances set out in the Quality of
Care Principles). This is because the Quality of Care Principles already set out what is
appropriate use of physical and chemical restraint.
New subsection 54-3(5) provides for the Quality of Care Principles to specify acts,
omissions or events as reportable incidents, and to specify acts, omissions or events
that are not reportable incidents. This will allow for the Quality of Care Principles to
provide clarity about reportable incidents and to specify certain events that do not fall
within the definition of a reportable incident. For example, circumstances involving a
staff member raising their voice to attract attention or to speak to a residential care
recipient with hearing difficulties could be specified in the Quality of Care Principles
as not being a reportable incident.
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New subsection 54-3(6) outlines some of the matters the Quality of Care Principles
may deal with:
the manner and period within which reportable incidents must be reported to
the Commissioner;
action that must be taken in relation to reportable incidents; or
authorising the provision of information relating to reportable incidents to the
Minister, the Commissioner or other bodies.
A note is also included in new subsection 54-3(6), which states that existing powers
under section 21 of the Quality and Safety Commission Act may provide for the
Commissioner's functions and powers in dealing with reportable incidents.
New subsection 54-3(7) provides that action that must be taken in relation to a
reportable incident may include requiring an approved provider to provide the
residential aged care recipient of the provider with information regarding the use of an
advocate in relation to the reportable incident. In addition, it provides that action that
must be taken in relation to a reportable incident may also include requiring, at the
cost of the approved provider, an independent investigation to be conducted into a
reportable incident within a specified period and providing a report of that
investigation to the Commissioner.
New section 54-4 - Disclosures qualifying for protection
For the purposes of new section 54-4, subsection 54-4(1) identifies categories of
persons who are protected under new section 54-4. New section 54-4 will apply to a
disclosure of information by a person or body (referred to as the discloser) who is, or
was, any of the following:
an approved provider;
one of an approved provider's key personnel;
a staff member of an approved provider;
a residential care recipient, or a family member, carer, representative, advocate
(including an independent advocate) or significant other of the recipient;
a volunteer who provides, care or services for an approved provider.
New subsection 54-4(2) sets out circumstances that must be met for the discloser to
qualify for protection under this new section. The disclosure must be made to the
Commissioner, the approved provider, one of the approved provider's key personnel,
a staff member of the approved provider, another person authorised by the approved
provider to receive reports of reportable incidents, a police officer or another person
prescribed by the Quality of Care Principles. The discloser will be protected under
this section if their disclosure also meets all the following criteria:
prior to making the disclosure, the discloser informs the person to whom the
disclosure is made of the discloser's name;
the discloser has reasonable grounds to suspect that the information indicates
that a reportable incident has occurred; and
the discloser makes the disclosure in good faith.
New section 54-5 - Disclosure that qualifies for protection not actionable etc.
New subsection 54-5(1) provides that where a person makes a disclosure that qualifies
for protection, the person is not subject to any civil or criminal liability for making the
10
disclosure, and no contractual or other remedy may be enforced or exercised against
the person on the basis of the disclosure.
The note under the subsection clarifies that the person is still subject to any civil or
criminal liability for conduct that may be revealed by the disclosure.
New subsection 54-5(2) provides, without limiting subsection (1), that the person has
qualified privilege in respect of the disclosure and a contract to which the person is a
party may not be terminated on the basis that the disclosure constitutes a breach of the
contract.
New subsections 54-5(3) and 54-5(4) provide an explanation of what qualified
privilege and malice means in the context of defamation proceedings in respect of a
disclosure.
New subsection 54-5(5) clarifies that this section does not limit or affect any right,
privilege or immunity that a person has, apart from this section, as a defendant in
proceedings, or in an action from defamation.
Without limiting the protections described in this section, under new subsection
54-4(6), if a court is satisfied that an employee has made a protected disclosure and
the employer (be it the approved provider or a recruitment or employment agency
who employs the person) has terminated the discloser's contract of employment on
the basis of the disclosure, the court may:
order that the employee be reinstated in that position or a position at a
comparable level; or
order the employer to pay the employee an amount instead of reinstating the
employee, if the court considers it appropriate to make the order.
New section 54-6 - Victimisation prohibited
New section 54-6 creates a civil penalty for victimisation. A person contravenes this
subsection if they actually cause detriment to another person or a third party within
the meaning of subsection 54-6(1) or they threaten to cause detriment to another
person within the meaning of subsection 54-6(2).
New subsection 54-6(2) provides that a person contravenes this subsection, if:
the person (the first person), makes a threat to another person (the second
person) to cause detriment to the second person or a third party, and
the first person either:
o intends the second person to fear the threat will be carried out. For
example the person has a plan or purpose to make the second person
believe that the threat will occur; or
o is reckless as to causing the second person to fear that the threat will
be carried out. For example the first person is careless of the
consequence of the action to the extent that the second person fears the
threat will occur; and
o the first person makes the threat because a person has made or may
make a disclosure that that is qualified for protection under new
section 54-4.
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For the purposes of new subsection 54-6(3), a threat may be express or implied, or
conditional or unconditional.
It is a civil penalty to actually cause detriment or threaten to cause detriment to
another person. The penalty is a maximum of 500 penalty units. New
subsection 54-6(4) makes clear that, in proceedings for a civil penalty order against a
person for a contravention of subsection 54-6(2), it is not necessary to prove that the
person threatened actually feared that the threat would be carried out. A penalty unit is
prescribed for the purposes of the Crimes Act 1914.
This penalty is based on comparable arrangements under the National Disability
Insurance Scheme Act 2013. The penalty reflects the need for protection of
individuals, who would have otherwise feared retribution for disclosing knowledge of
reportable incidents. This civil penalty amount is proportionate to provide strong
deterrence for wrong doing against vulnerable older Australians.
New section 54-7 - Right to compensation
New section 54-7 makes a person liable to compensate a person who suffers damage
as a result of a contravention of new subsections 54-6(1) or (2), in addition to any
penalty imposed.
New section 54-8 - Approved providers' responsibilities in relation to informants
New subsection 54-8(1) provides that an approved provider is responsible for
ensuring, as far as reasonably practicable, compliance with new legislative
requirements (relating to not exercising contractual rights or termination for breach of
contract, or threatening to cause detriment to another person) in relation to a person
who is a staff member of the approved provider and makes a disclosure that qualifies
for protection under new section 54-4, because they have made a protected disclosure.
The responsibility of approved providers to ensure staff member informants are not
victimised extends to the approved provider ensuring as far as reasonably practicable
that there is also compliance by others to not victimise, such as other staff members of
the approved provider and other parties with whom the approved provider contracts
(for example, an employment agency).
New subsection 54-8(2) requires that if a person reports a reportable incident to an
approved provider, the provider is responsible for taking reasonable measures to
ensure that the fact that the person was the maker of the report is not disclosed, except
to one or more of the following:
the Commissioner;
a person, authority or court to which the approved provider is required by a
law of the Commonwealth or a State or Territory to disclose the fact;
one of the approved provider's key personnel; or
a police officer.
Under new subsection 54-8(3), if a person reports a reportable incident to someone
(the report recipient) who is one of an approved provider's key personnel, or a person
authorised by an approved provider to receive reports of reportable incident, the
provider is responsible for taking reasonable measures to ensure that the report
12
recipient does not disclose the fact that the person was the maker of the report, except
to the persons specified above.
Quality and Safety Commission Act
Item 3
Item 3 inserts new subsection (7) into section 21 of the Quality and Safety
Commission Act. Section 21 provides for the Rules to make provisions that allow for
the Commissioner to do what may be required in order to perform their duties.
New subsection 21(7) provides that the Rules may determine matters in relation to
how the Commissioner will deal with reportable incident, including in relation to the
action taken (including requiring an approved provider to do something), the
circumstances in which the Commissioner may authorise or carry out an inquiry and
how information given to the Commissioner about a reportable incident may be dealt
with. This is a broad provision to ensure that there is flexibility to allow the
Commissioner to ensure the safety needs of aged care consumers are met.
Part 2 - Consequential amendments
Aged Care Act
Item 4
Item 4 repeals section 63-1AA of the Aged Care Act. This section provided for the
responsibilities of an approved provider of residential care relating to an allegation or
suspicion of a reportable assault. Repealing this section will mean that the
responsibilities will no longer apply. Instead, new paragraph 54-1(1)(e) provides for
new incident management and prevention arrangements including expanding
reportable incidents under the SIRS.
Item 5
Item 5 inserts the words "(other than a civil penalty provision in Division 54)" into
section 90-1 of the Aged Care Act. Section 90-1 provides a simplified outline of Part
6.4 of the Aged Care Act. Item 5 clarifies in the outline the interactions with Division
54.
Item 6
Item 6 inserts the words "(other than a civil penalty provision in Division 54)" into
section 92-3(1) of the Aged Care Act. Section 92-3 confers powers of investigation on
authorised officers by triggering Part 3 of the Regulatory Powers Act. These powers
are limited to investigating contraventions of offences under the Aged Care Act at
premises entered under warrant only, and do not extend to contraventions of civil
penalty provisions under division 29A. Item 6 clarifies interactions with Division 54.
Item 7
Item 7 repeals and replaces the title of the note in subsection 92-3(1) of the Aged Care
Act, from "Note" to "Note 1". This is to account the inclusion of a second note (see
Item 8).
Item 8
Item 8 includes a note at the end of subsection 92-3(1) of the Aged Care Act. The note
refers to Part 8A of the Quality and Safety Commission Act to clarify that the civil
13
penalty provisions in Division 54, which is in relation to new disclosure provisions,
are also subject to investigation under Part 3 of the Regulatory Powers Act.
Item 9
Item 9 inserts new subsection (4) into section 95C-1 of the Aged Care Act.
Section 95C-1 provides details on civil penalties for the purposes of the Aged Care
Act. New subsection 95C-1(4) clarifies that the section does not apply to a civil
penalty provision in Division 54, which deals with Quality of Care including the
SIRS, and to refer to Part 8A of the Quality and Safety Commission Act for
enforcement of the civil penalty provisions under Division 54.
Item 10
Item 10 repeals section 96-8 of the Aged Care Act. This section provided protections
for reporting reportable assaults. New sections 54-4 to 54-8 of the Aged Care Act
replace arrangements under section 96-8 and provide broader protections.
Item 11
Item 11 repeals the definition of reportable assault from Clause 1 of Schedule 1 to the
Aged Care Act as a consequence of the repeal of section 63-1AA.
Item 12
Item 12 amends Clause 1 of Schedule 1 to include new defined terms. The new terms
include reportable incident as defined in new subsections 54-3(2) and (5) and
residential care recipient as defined in 54-3(3).
Item 12 also provides that the term staff member of an approved provider means an
individual who is employed, hired, retained or contracted, whether directly or through
an employment or recruiting agency, by the approved provider to provide care or
other services. This term was previously defined in section 63-1AA and is inserted in
Clause 1 of Schedule 1 as a consequence of the repeal of section 63-1AA.
Quality and Safety Commission Act
Item 13
Item 13 amends section 7 of the Quality and Safety Commission Act, which sets out
definitions for the purposes of that Act, to include the new term reportable incident.
The term is defined to have the same meaning as in the Aged Care Act (see item 12
above).
Part 3 - Transitional Provisions
Item 14 - Application of incident management provisions
Subitem 14(1) provides that the amendments made by Part 1 of Schedule 1 of this
Bill, which relate to incident management, reportable incidents and disclosure
protections apply in relation to incidents that occur, or are alleged or suspected to
occur, on or after the commencement of the Schedule.
Subitem 14(2) provides that new sections 54-4 to 54-8 of the Aged Care Act, which
relate to disclosure protections, also apply in relation to a disclosure of information by
a person or body (the discloser) made on or after the commencement of the Schedule,
if the disclosure has reasonable grounds to suspect that the information indicates a
reportable incident has occurred in the period starting on 1 January 2020. This
14
beneficial arrangement will ensure that the new, broader protections apply in respect
of incident that have occurred during 2020 and in the early months of 2021 before the
SIRS commences. This is to protect those who, for example, may disclose a
reportable incident that occurred at the peak of the COVID-19 pandemic.
Subitem 14(3) clarifies that for the purposes of subitem (2), reportable incident has
the same meaning as it would have under new section 54-3 of the Aged Care Act.
Item 15 - Saving of protection for reportable assaults
Item 15 provides that despite the repeal of section 96-8 of the Aged Care Act, which
provided protections for reporting reportable assaults, section 96-8 as in force
immediately before the commencement of this Schedule applies to disclosure of
information made before that commencement.
SCHEDULE 2 -- ENFORCEMENT
Part 1 - Main amendments
Quality and Safety Commission Act
Item 1
Item 1 inserts new sections 74EA, 74EB, 74EC and 74ED to Part 8A of the Quality
and Safety Commission Act.
New section 74EA - Civil penalty provisions
New section 74EA provides that each civil penalty provision of the Quality and Safety
Commission Act and of Division 54 of the Aged Care Act (which deals with Quality
of Care including the SIRS) is enforceable under Part 4 of the Regulatory Powers Act.
New subsection 74EA(2) provides that the Commissioner is an authorised person for
the purposes of the civil penalty provisions under the Quality and Safety
Commission Act and of Division 54 of the Aged Care Act (which deals with Quality
of Care including the SIRS) in relation to Part 4 of the Regulatory Powers Act.
New subsection 74EA(3) provides that a relevant court for the purposes of exercising
powers under Part 4 of the Regulatory Powers Act is the Federal Court, the Federal
Circuit Court or a court of a State or Territory that has jurisdiction in relation to
matters arising under the Quality and Safety Commission Act.
New subsection 74EA(4) provides that the Crown is not liable to a pecuniary penalty
in relation to the provisions under the Quality and Safety Commission Act and in
Division 54 of the Aged Care Act (which deals with Quality of Care including the
SIRS).
New subsection 74EA(5) provides that Part 4 of the Regulatory Powers Act, as it
applies to the civil penalty provisions under the Quality and Safety Commission Act
and in Division 54 of the Aged Care Act (which deals with Quality of Care including
the SIRS).
Existing delegation arrangements under subsection 76(1) of the Quality and Safety
Commission Act will apply in relation to new section 74EA.
15
New section 74EB - Infringement notices
New section 74EB provides that a civil penalty in the Quality and Safety Commission
Act and in Division 54 of the Aged Care Act (which deals with Quality of Care
including the SIRS) is subject to an infringement notice under Part 5 of the
Regulatory Powers Act.
This section also makes the offences under Division 9 of the Aged Care Act subject to
an infringement notice under Part 5 of the Regulatory Powers Act. This means that in
relation to the offences under subsection 9-3A(3) and 9-3B(5), an authorised officer of
the Commission will be able to issue infringement notices for offences relating to
requests made by Commissioner, as well as those made by the Secretary.
This section also make the offences under new section 74G of the Quality and Safety
Commission Act, which relates to notices to require information or documents, to be
subject to an infringement notice under Part 5 of the Regulatory Powers Act.
Consistent with Commonwealth guidelines for infringement notice schemes and the
Regulatory Powers Act, infringement notices may be used to deal with less serious
and less factually complex contraventions, where initiating court proceedings would
be disproportionately costly (see Chapter 6 of the Australian Government Guide to
Framing Commonwealth Offences, Infringement Notices and Enforcement Powers).
By way of example, the Commissioner may issue an infringement notice if there have
been multiple instances of low level neglect by an approved provider.
New subsection 74EB(2) provides that the Commissioner is an infringement officer
for the purposes of Part 5 of the Regulatory Powers Act, in relation to the
infringement notice provisions under the Quality and Safety Commission Act and of
Division 54 of the Aged Care Act (which deals with Quality of Care including the
SIRS).
New subsection 74EB(3) provides that a relevant court for the purposes of exercising
powers under Part 5 of the Regulatory Powers Act is the Federal Court, the Federal
Circuit Court or a court of a State or Territory that has jurisdiction in relation to
matters arising under the Quality and Safety Commission Act.
New subsection 74EB(4) provides that, despite new section 74EB and section 4-2 of
the Aged Care Act, the Crown is not liable to be given an infringement notice in
relation to the provisions under the Quality and Safety Commission Act and in
Division 54 of the Aged Care Act (which deals with Quality of Care including the
SIRS).
New subsection 74EB(5) provides that Part 5 of the Regulatory Powers Act, as it
applies to provisions under the Quality and Safety Commission Act and in Division
54 of the Aged Care Act (which deals with Quality of Care including the SIRS),
extends to the external Territories, other than the Territory of Ashmore and Cartier
Islands.
Existing delegation arrangements under subsection 76(1) of the Quality and Safety
Commission Act will apply in relation to new section 74EB.
16
New section 74EC - Enforceable undertakings
New subsection 74EC(1) applies Part 6 of the Regulatory Powers Act, which creates a
framework for accepting and enforcing undertakings, in relation to a provision under
Chapter 4 of the Aged Care Act. This includes the incident management provisions,
including reportable incidents, under the Aged Care Act and the Quality of Care
Principles.
New subsection 74EC(2) provides that the Commissioner is an authorised person for
the purposes of accepting an undertaking under Part 6 of the Regulatory Powers Act.
New subsection 74EC(3) provides that a relevant court for the purposes of exercising
powers under Part 6 of the Regulatory Powers Act is the Federal Court, the Federal
Circuit Court or a court of a State or Territory that has jurisdiction in relation to the
provisions mentioned in new subsection 74EC(1).
New subsection 74EC(4) provides that Part 6 of the Regulatory Powers Act, as it
applies to the provisions mentioned included in new subsection 74EC(1) extends to
the external Territories, other than the Territory of Ashmore and Cartier Islands.
Existing delegation arrangements under subsection 76(1) of the Quality and Safety
Commission Act will apply in relation to new section 74EC.
New section 74ED - Injunctions
New subsection 74ED(1) applies Part 7 of the Regulatory Powers Act, which creates a
framework for using injunctions to enforce a provision under Chapter 4 of the Aged
Care Act. This includes the incident management provisions, including reportable
incidents, under the Aged Care Act and the Quality of Care Principles.
New subsection 74ED(2) provides that the Commissioner is an authorised person for
the purposes of Part 7 of the Regulatory Power Act.
New subsection 74ED(3) provides that a relevant court for the purposes of exercising
powers under Part 7 of the Regulatory Powers Act is the Federal Court, the Federal
Circuit Court or a court of a State or Territory that has jurisdiction in relation to the
provisions mentioned in new subsection 74ED(1).
New subsection 74ED(4) clarifies that, despite the operation of section 121 of the
Regulatory Powers Act, a relevant court may grant an injunction by consent of all the
parties to proceedings brought under Part 7 of the Regulatory Powers Act. This aims
to reduce the need for an application to be made to a court in each instance.
New subsection 74ED(5) provides that Part 7 of the Regulatory Powers Act, as it
applies to the provisions mentioned in new subsection 74ED(1) extends to the
external Territories, other than the Territory of Ashmore and Cartier Islands.
Existing delegation arrangements under subsection 76(1) of the Quality and Safety
Commission Act will apply in relation to new section 74ED.
Item 2
Item 1A inserts new Division 2A to Part 8A regarding compliance notices.
17
New Division 2A - Compliance notices
New section 74EE - Compliance notices
New subsection 74EE(1) enables the Commissioner to issue compliance notices to an
approved provider if the Commissioner is satisfied that the approved provider is not
complying with, or is aware of information that suggests that the approved provider
may not be complying with, the approved provider's responsibilities under the
incident management provisions, including reportable incidents under the Aged Care
Act and in the Quality of Care Principles.
New subsection 74EE(2) sets out the requirements that compliance notices must
contain. These include the name of the provider, details of the non-compliance or
possible non-compliance (if paragraph 74EE(1)(b) applies), action the provider must
take or refrain from taking (including being required to provide evidence of this fact),
and any period within which the provider must take, or refrain from taking the
specified action.
Failure to comply with a compliance notice is a contravention which attracts a
maximum civil penalty of 60 penalty units (new subsection 74EE(3)). It may also
result in imposition of sanctions on an approved provider under 7B of the Quality and
Safety Commission Act. These matters must also be set out in the compliance notice.
This penalty is based on comparable arrangements under the National Disability
Insurance Scheme Act 2013. The penalty reflects the need to provide deterrence for
mismanagement of incidents occurring in connection with providing care and services
to residential care recipients. The deterrence aims to ensure safeguards for residential
care recipients.
Under new subsections 74EE(4) and (5), the Commissioner may vary or revoke a
compliance order given to the approved provider if the Commissioner considers that it
is appropriate in all circumstances to do so. In deciding whether to vary or revoke the
compliance notice, the Commissioner must consider any submissions that are received
from the provider before the end of the period specified in the compliance notice. A
decision to give a compliance notice is a reviewable decision for the purposes of
section 74J of the Quality and Safety Commission Act.
Existing delegation arrangements under subsection 76(1) of the Quality and Safety
Commission Act will apply in relation to new section 74EE.
Item 3
Item 3 inserts new section 74GA into Division 3 to Part 8A of the Quality and Safety
Commission Act.
New section 74GA - Power to require information or documents
New section 74GA provides a new power to require, by notice in writing, a person to
give to the Commissioner any information or to produce any documents the
Commissioner requires for the purposes of administering the Commission's
regulatory framework.
New subsection 74GA(1) provides that the Commissioner may, by written notice
given to a person, require the person, within the a reasonable time stated in the notice,
18
to give the Commissioner any information, or produce to the Commissioner any
documents, or copies of documents, specified in the notice that the Commissioner
requires for the performance of the Commissioner's functions. This power may be
used to obtain information or documents (or copies of documents) required to ensure
compliance with the aged care responsibilities of approved providers and provisions
of the Quality and Safety Commission Act and Aged Care Act, including the incident
management provisions of the SIRS. This this power will enable the Commission to
obtain information or documents directly from its source to effectively carry out its
reportable incident and other function. For example, this may include information
requested from doctors or an independent advocate etc. to verify reports made under
the SIRS.
The new power is also intended to be used to obtain other information or documents,
to support the Commissioner's other functions. For example, in carrying out the
reportable incident functions, the Commissioner may require information or
documents to identify any systemic issues which may have contributed to a reportable
incident(s).
The statutory trigger for exercising this power is tied to the broad purposes of
administering the Quality and Safety Commission Act. While this provides a low
threshold for exercising this power, this threshold is appropriate given the
Commission relies significantly on the information and documents provided by
relevant persons to carry out its functions, including determining compliance where
first hand monitoring is not practical.
Further, the information or documents obtained from using this power is not expected
to be used to investigate contraventions of a responsibility, civil penalty provision or
offence under the Commission Act and the Aged Care Act. It is intended that the
more limited powers under Division 3, Part 8A of the Commission Act is reserved for
carrying out such investigations, where there must be reasonable grounds to consider
that person has information or documents relevant to an approved provider's
compliance, in order to exercise those powers.
New subsection 74GA(2) clarifies that the Commissioner may extend the time within
which the information or documents (or copies of documents) must be produced.
New subsection 74GA(3) clarifies that a person is not required to comply with a
requirement of a notice given under subsection (1) if the performance of function
relates to affairs of an approved provider, or former approved provider, that is not a
corporation.
New subsection 74GA(4) provides that a person commits an offence if the person fails
to comply with a notice given. Failure to comply with a notice to give information or
produce documents (or copies of documents) is a strict liability offence. Applying
strict liability to this offence is important to the integrity of the regulatory regime
given the Commission's reliance on information and documents provided by persons
in carrying out its functions, where first hand monitoring is not practical.
Applying strict liability to this offence will also help to deter against non-compliance
with requests for information. Persons lacking fault deserve to be punished since they
will be placed on notice about the strict liability to guard against contravention - a
19
contravention which will be easily determined by reference to clear and objective
criteria. The offences are also minor, punishable by a fine of up to 30 penalty units for
a body corporate, and not by imprisonment.
The Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers was considered in framing these offences as strict liability.
Part 2 - Other amendments
Aged Care Act
Item 4 and Item 5
Item 4 inserts new subsections into sections 9-2 and 9-3A of the Aged Care Act. New
subsection 9-2(3A) and 9-3A(3A) provide that strict liability applies to subsections
9-2(3) and 9-3A(3).
Item 5 inserts a new subsection to section 5A of 9-3B of the Aged Care Act. New
subsection 9-3B(5A) provides that strict liability applies to subsection 9-3B(5).
Under these provisions, an approved provider commits an offence if the provider fails
to comply with a request for information made by the Secretary or the Aged Care
Quality and Safety Commissioner, within 28 days of the request or a specified period.
The information which may be requested includes information relevant to an
approved provider's suitability, or information relating to refundable accommodation
bonds, entry contributions etc. or information relating to an approved provider's
ability to refund balances.
The imposition of strict liability to these offences is important to the integrity of the
regulatory regime. These offences enable oversight of key regulatory risks relating to
an approved provider's suitability to provide aged care, and its prudential compliance.
The Commission is to a significant extent dependent on the information reported by
approved providers under Division 9 to discover and determine whether there has
been compliance given first hand monitoring of these kinds of risks is not practical.
Applying strict liability will help to deter against non-compliance with requests for
information. Persons lacking fault deserve to be punished since they will be placed on
notice about the strict liability to guard against contravention - a contravention which
will be easily determined by reference to clear and objective criteria. The offences are
also minor, punishable by a fine of up to 30 penalty units for a body corporate, and
not by imprisonment.
The Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers was considered in framing these offences as strict liability.
Quality and Safety Commission Act
Item 6
Item 6 amends section 7 of the Quality and Safety Commission Act, regarding
definitions, to include the new terms. The term civil penalty provision is defined to
have the same meaning as in the Regulatory Powers Act. The term compliance notice
is defined mean a notice given under new section 74EE.
20
Item 7
Item 7 inserts new subsection (1A) into section 63N of the Quality and Safety
Commission Act. Section 63N sets out matters the Commissioner needs to be satisfied
of when making a decision to impose sanctions on an approved provider. New
subsection (1A) clarifies that the Commissioner may impose one or more sanctions on
an approved provider for non-compliance with an aged care responsibility, even if the
Commissioner has given the approved provider a compliance notice in relation to
non-compliance (regardless of whether the compliance notice has been complied
with).
Item 8
Item 8 inserts new paragraphs (fa) and (fb) into subsection 63N(3) of the Quality and
Safety Commission Act. Section 63N sets out matters the Commissioner needs to be
satisfied of when making a decision to impose sanctions on an approved provider.
Subsection 63N(3) provides that the Commissioner must give consideration to a
number of factors in relation to the non-compliance when deciding if sanctions are the
appropriate course of action. Inserting new paragraphs (fa) and (fb) will require the
Commissioner to also give consideration to whether the provider has given an
undertaking under section 114 in relation to the non-compliance, and if the provider
has been given a compliance notice in relation to the non-compliance, whether the
provider has complied.
Item 9
Item 9 repeals and replaces the simplified outline for Part 8A in section 74A. The
outline is updated to account for new arrangements in new sections 74EA, 74EB,
74EC and 74ED, regarding civil penalties, infringement notices, enforceable
undertakings and injunctions.
Item 10
Item 10 inserts new paragraph (c) to subsection 74D(1) of the Quality and Safety
Commission Act. Section 74D confers powers of investigation on an authorised
officer by triggering Part 3 of the Regulatory Powers Act. Inserting new paragraph
74D(1)(c) will allow investigation in relation to a civil penalty provision within the
Quality and Safety Commission Act or Division 54 of the Aged Care Act, which deals
with Quality of Care including the SIRS.
Item 11
Item 11 adds an item to the table at Section 74J of the Quality and Safety Commission
Act. Section 74J identifies the decisions that are reviewable and the affected person
who may request reconsideration of these decisions. The new item includes a decision
to issue a compliance notice under new section 74EE as a reviewable decision for a
person whose interests are affected by that decision.
Part 3 - Transitional Provisions
Item 12 - Application of power to require information or documents
Item 12 provides that new section 74GA of the Quality and Safety Commission Act
applies in relation to the performance of the Commissioner's functions on or after the
commencement of this Schedule, including in relation to the affairs of an approved
provider, or a former approved provider, before, on or after that commencement. Item
12 also clarifies that new section 74GA of the Quality and Safety Commission Act
21
applies in relation to information and documents created before, on or after that
commencement.
SCHEDULE 3 -- AMENDMENTS CONTINGENT ON THE FEDERAL
CIRCUIT COURT AND FAMILY COURT OF AUSTRALIA ACT 2020
Quality and Safety Commission Act
Item 1
Item 1 repeals new paragraphs 74EA(3)(b), 74EC(3)(b) and 74ED(3)(b) of the
Quality and Safety Commission Act and substitutes with updated references to the
Federal Circuit and Family Court of Australia.
22
REVIEW OF NATIONAL AGED CARE
QUALITY REGULATORY PROCESSES
Ms Kate Carnell AO
Professor Ron Paterson ONZM
October 2017
xxiii
The Hon Ken Wyatt MP
Minister for Aged Care
Parliament House
Canberra ACT 2600
Dear Minister Wyatt
We present to you our report on the Review of National Aged Care Quality Regulatory Processes.
While Commonwealth aged care quality regulatory processes work well in most cases, the Review
examined why they failed to adequately detect the longstanding failures in care at the Oakden Older
Persons Mental Health Service prior to its sanction on 17 March 2017.
The response to the Review was overwhelming. We received more than 400 submissions and
conducted over 40 consultations with consumers and their families, advocates, peak bodies, service
providers, health and aged care workers, academics and regulatory experts. We also held three
consumer forums in Brisbane and Melbourne.
The Review was informed by analysis of peer-reviewed and grey literature that examined how the
operation of Australia's aged care regulatory system compares to those in other developed countries
facing similar challenges. We also assessed the extent to which Australia's regulatory system
conforms with established best-practice regulatory principles.
Our consultations and research highlighted the need for better coordination of regulatory functions,
expanded intelligence-gathering capacity and a better system for sharing information on provider
performance with the public and aged care service providers, to promote service improvement. We
have also recommended changes to accreditation, compliance monitoring and complaints-handling
processes to make them more responsive to emerging issues with care quality.
Our recommendations represent an important step towards ensuring that the Commonwealth's
aged care regulatory processes protect older Australians.
We thank you for the opportunity to contribute to building a stronger aged care system.
Yours sincerely
L-R: Professor Ron Paterson ONZM,
Minister for Ageing, the Hon Ken Wyatt AM,
MP, and Ms Kate Carnell AO (Chair)
xxiv
EXECUTIVE SUMMARY ......................................................................................................................................... XXVII
Introduction .............................................................................................................................................. xxvii
The role of regulation ................................................................................................................................ xxvii
Key elements of an effective regulatory system for aged care quality ...................................................... xxix
Conclusion ................................................................................................................................................. xxxii
RECOMMENDATIONS .......................................................................................................................................... XXXIII
PART 1 AGED CARE QUALITY REGULATION IN AUSTRALIA ............................................................................... 1
CHAPTER 1: INTRODUCTION ...................................................................................................................................... 1
Context ........................................................................................................................................................... 2
Oakden--a critical incident ............................................................................................................................ 4
This Review .................................................................................................................................................... 4
CHAPTER 2: AUSTRALIA'S CURRENT REGULATORY SYSTEM ............................................................................................... 6
Introduction ................................................................................................................................................... 6
A tripartite system ......................................................................................................................................... 7
Provider approval ........................................................................................................................................... 9
Provider accreditation .................................................................................................................................. 10
Monitoring compliance with the Accreditation Standards .......................................................................... 12
Managing non-compliance with the Standards ........................................................................................... 15
The National Aged Care Compliance Program ............................................................................................. 17
Complaints ................................................................................................................................................... 21
Other regulators of quality in aged care ...................................................................................................... 24
Other developments in quality care ............................................................................................................. 25
Community engagement to promote quality............................................................................................... 27
Conclusion .................................................................................................................................................... 28
CHAPTER 3: WHAT WENT WRONG AT OAKDEN? ......................................................................................................... 29
Introduction ................................................................................................................................................. 29
Oakden--a story in three parts .................................................................................................................... 29
Understanding Oakden ................................................................................................................................ 37
Conclusion .................................................................................................................................................... 49
CHAPTER 4: PERFORMANCE OF AUSTRALIA'S AGED CARE REGULATORY SYSTEM ................................................................. 51
Introduction ................................................................................................................................................. 51
A framework to analyse regulatory performance ........................................................................................ 51
Principle 1: Good governance ...................................................................................................................... 52
Principle 2: Appropriate choice of Standards ............................................................................................... 61
Principle 3: Responsive regulation to encourage and enforce compliance .................................................. 66
Conclusion .................................................................................................................................................... 73
PART 2: HOW CAN WE IMPROVE QUALITY REGULATORY PROCESSES? .......................................................... 75
CHAPTER 5: INTEGRATION OF THE REGULATORY SYSTEM ............................................................................................... 77
An independent regulatory commission ...................................................................................................... 77
An integrated data management system .................................................................................................... 82
CHAPTER 6: BETTER INFORMATION ON QUALITY FOR CONSUMERS AND PROVIDERS ............................................................ 93
Evidence-based quality indicators ................................................................................................................ 93
A star-rated system for reporting of provider performance ...................................................................... 100
CHAPTER 7: BETTER SUPPORT AND PROTECTION FOR CONSUMERS ................................................................................ 105
Support for consumers to exercise their rights .......................................................................................... 105
Protecting aged care residents from abuse and neglect ............................................................................ 108
xxv
Protecting aged care residents from restrictive practices.......................................................................... 114
CHAPTER 8: BETTER ACCREDITATION AND COMPLIANCE MONITORING ........................................................................... 127
A risk-based approach to accreditation ..................................................................................................... 128
Assessment against Accreditation Standards ............................................................................................ 133
CHAPTER 9: ENHANCED CONSUMER-CENTRED COMPLAINTS PROCESSES ......................................................................... 148
Complaints and complaints-handling activity ............................................................................................ 148
Improving the culture and transparency of complaints handling .............................................................. 149
An open disclosure statement .................................................................................................................... 153
Increasing transparency and timeliness in reporting ................................................................................. 154
Strengthening consumer assistance and advocacy.................................................................................... 155
APPENDIX A: TERMS OF REFERENCE ............................................................................................................ 160
APPENDIX B: PROCESS OF THE REVIEW ........................................................................................................ 161
APPENDIX C: CONSULTATION SUMMARY .................................................................................................... 163
APPENDIX D: COMPLAINTS STATISTICS ........................................................................................................ 174
xxvi
Executive summary
Introduction
The community expects the Commonwealth's regulation of aged care to be able to assure it
that people in residential aged care facilities are safe, well cared for and have a good quality
of life.1
This statement of community expectations lies at the heart of our Review. We were asked to
examine whether the community can justifiably have such assurance on the basis of current
Commonwealth quality regulatory processes. A similar question is asked by England's regulator of
residential aged care, the Care and Quality Commission (CQC). Does care meet the 'Mum Test'-- is it
good enough for my Mum or any other member of my family?2
Despite reforms to improve the quality of residential aged care, our Review has identified that
current regulatory mechanisms do not consistently provide the assurance that the community
expects.
Oakden Older Persons Mental Health Service (Oakden) had significant failures of care, and the
Commonwealth's regulatory framework failed to detect them. Many aged care residents, including
some of the most vulnerable and unwell in the aged care system, received poor-quality care and
suffered as a consequence.
While the situation at Oakden is not typical, the circumstances that led to it are certainly not unique.
Oakden is a sentinel case and highlights areas for improvement in the regulatory system.
The role of regulation
Considered in an international context, the regulatory system governing aged care in Australia
performs relatively well. While complex, Australia's current regulatory system aligns well with some
accepted best-practice regulatory principles.
However, in an era when consumer choice and competition are frequently invoked as the best
means to improve quality, some may question the role of government as a regulator of this sector.
In our view, the rationale for regulation of residential aged care quality is that the market is an
inadequate mechanism to ensure the safety and well-being of highly vulnerable residents. Elderly
citizens living in care facilities, many of whom suffer from disabilities and dementia associated with
ageing, are especially in need of protection.
1
The Hon Ken Wyatt AM, MP, 1 May 2017, 'Federal aged care minister to commission review of aged care
quality regulatory processes', Media release.
2
Care Quality Commission, 2017, The state of adult social care services 2014 to 2017, p. 2; Kapp, M.B., 2003,
'At least Mom will be safe there: the role of resident safety in nursing home quality', Quality & Safety in Health
Care, Vol. 12, pp. 201-204.
xxvii
Quality assurance is vital in a sector where residents (and prospective residents) and their families
are poorly placed to compare the quality of facilities. Despite their motivation to find a suitable,
good-quality facility, people find it very difficult to obtain current, reliable information, and rely on
recommendations from friends and (if they have the financial means) commercial aged care
navigators.
Thus, we see the primary role of quality regulation as consumer protection. The Commonwealth
needs to know that any residential aged care provider that it licenses and (partly) funds meets at
least minimum standards of safety, quality of care and quality of life. Rigorous accreditation is a
means of checking that core standards are met. As part of its safety oversight role, the
Commonwealth can also protect residents by requiring reporting of serious incidents and mandating
compliance with guidelines limiting the use of restraint and antipsychotic medication.
A further dimension of the Commonwealth's consumer protection role in aged care is ensuring that
residents have access to an independent statutory complaints commissioner to assess and
investigate complaints raised by residents and their representatives. An effective complaints
commissioner provides answers and redress for individuals, shares lessons that providers can use for
quality improvement, and acts as a public watchdog, notifying oversight agencies of 'red flag'
information about patterns of concern or serious incidents evident in complaints.
A secondary role for regulation in the aged sector is to encourage quality improvement. While it is
important that government does not stifle innovation by prescriptive regulation or burden providers
with unnecessary red tape and costs that detract from care provision, regulation can help lift quality
beyond a minimum standard. For example, regulation can mandate publication of comparative
quality information, require participation in agreed quality indicator programs, and promote
education of consumers and providers about the rights of care recipients.
Regulation should complement and support other quality levers. Ultimately, responsibility for the
provision of high-quality care lies with the provider. Professionalism of aged care workers, a
commitment to care and compassion, and effective clinical governance in the residential homes in
which they work, are critical to ensuring that residents are well cared for.
Transparency of comparative information about quality is also an important means of improving
quality. Consumers and providers in the aged care sector are calling for clear, accessible quality
information. Despite the commitment to better information through the My Aged Care website,
there is currently little meaningful quality information available to the public, and Australia is falling
behind other countries in this area.
Meaningful input from residents, families, community visitors and advocacy groups is also essential
to ensuring that the consumer's voice is heard by facilities. No one has a greater stake in the quality
of residential aged care than the residents themselves and their families and advocates. They are the
first to identify issues of concern and areas for improvement. We agree with the view expressed by
Council on the Ageing Australia (COTA) in its submission:
xxviii
The aged care sector needs to increase the transparency of accreditation for residents and
their family or friends, and much more effectively gather and incorporate their views about
and experience of the facility in which they or their loved one lives ... 3
Key elements of an effective regulatory system for
aged care quality
We have identified the following key elements of an effective regulatory system for aged care
quality.
1) An integrated safety and quality regulator
The current regulatory system is fragmented. The point is well made in a submission from a major
aged care services provider:
... [T]he current split of responsibilities between the Department of Health, the Quality
Agency and the Complaints Commissioner creates opportunity for miscommunication or
discoordination between the three organisations ... It would ... be more efficient if a single
agency looks at all aspects of an issue.4
A single agency, as originally proposed by the Productivity Commission,5 would enable integration of
accreditation, compliance and complaints handling in an independent body.
We propose establishment of an Aged Care Quality and Safety Commission. We recommend that the
new Commission comprise an Aged Care Quality Commissioner, an Aged Care Complaints
Commissioner and an Aged Care Consumer Commissioner. An Aged Care Commission Board would
govern the Commission. Within the new Aged Care Commission, a Chief Clinical Advisor will provide
clinical leadership.
We are conscious that, in relation to setting standards for safety and quality, there are some
parallels between our proposed new Aged Care Commission and the Australian Commission on
Safety and Quality in Health Care. However, residents of aged care facilities have special needs and
vulnerabilities, different from those of patients and health care consumers - and the agency we
propose will be a regulator, overseeing an area of high and discrete community concern.
2) Information on care quality for consumers and providers
The absence of reliable, comparable information about care quality in residential aged care is a
striking feature of the current system. It is especially surprising given the ready access to
comparative information about other consumer goods and services. It is also concerning, given the
vulnerabilities of the elderly. The need for better, comparable quality information emerged as a
theme in many submissions and in our consultation meetings. Alzheimer's Australia submitted:
3
COTA Australia submission (ID#743548634) p. 4.
4
BUPA submission (ID#95926361) pp. 12-13.
5
Productivity Commission, 2011, Caring for older Australians, Volume 2, chapter 15.
xxix
... [W]e need a new approach to the accreditation of aged care in Australia that gives
consumers greater input into the process and results in outcomes that can then be reported
to consumers in an accessible form.6
The Aged Care Sector Committee, in its 2016 Aged Care Roadmap, identified transparent
information as essential for achieving quality:
To make informed choices about their care, [consumers] need improved information on
safety and quality and My Aged Care should publish information about provider's
performance against current standards for each service.7
We envisage the publication of clear, readily intelligible information that includes some form of star
rating against core standards. The simple and readily understandable rating information published
by the CQC in England provides a useful example.
3) Supporting consumers and their representatives to exercise their
rights
The United Nations 'Principles of Older Persons' affirm:
Older persons should be able to enjoy human rights and fundamental freedoms when
residing in any shelter, care, or treatment facility, including full respect for their dignity,
beliefs, needs and privacy and the right to make decisions about their care and the quality of
their lives.8
These principles find expression in the Charter of Care Recipients' Rights and Responsibilities--
Residential Care, legislated for in the Aged Care Act 1997.9 Specified rights include the right to
"quality information appropriate to his or her needs", "to be treated with dignity and respect", "to
complain and to take action to resolve disputes", "to have access to advocates and to other avenues
of redress" and "to be free from reprisal, or a well-founded fear of reprisal, in any form for taking
action to enforces his or her rights".10
Awareness of the Charter and of consumers' rights appears to be low. Not enough has been done to
ensure that consumers know their rights and are encouraged to exercise them.
We have made recommendations to ensure that greater prominence is given to the rights of
consumers of aged care residential services. Leadership in education should be provided by the new
Consumer Commissioner within the proposed Aged Care Commission, working alongside the Aged
Care Complaints Commissioner to educate the public and providers about consumers' rights.
6
Alzheimer's Australia submission (ID#11395657), text accompanying recommendation 2.
7
Aged Care Sector Committee, 2016, Aged Care Roadmap, p. 13.
8
United Nations, 1991, General Assembly resolution 46/91, Principles for Older Persons,
http://www.ohchr.org/EN/ProfessionalInterest/Pages/OlderPersons.aspx
9
Aged Care Act 1997, s 9 and Schedule 1, User Rights Principles 2014.
10
Charter of Care Recipients' Rights and Responsibilities, Care Recipient Rights (b), (d), (s), (t), (u).
xxx
4) More effective accreditation and compliance monitoring
The need for improvements in the rigour of the accreditation system was a persistent theme in
submissions made to this review. The Australian Aged Care Quality Agency has recognised the need
to move to a risk-based approach to accreditation, to take proper account of relevant history and
current risk profile of a facility, to do a better job of seeking the views of residents and their
representatives, and to ensure that quality surveyors have skills appropriate for the facility whose
care quality they assess.
Clearly, the accreditation processes that permitted the Makk and McLeay wards at Oakden to pass
all 44 outcomes under the Accreditation Standards in February 2016 were inadequate. This was a
deeply concerning failure. All too often, the Review heard about accreditation by the Quality Agency
that was focused on processes rather than outcomes, and appeared to be a 'tick-the-box' exercise.
Many critics of the current system pointed to the weaknesses of knowing the timing of accreditation
visits. One aged care worker commented:
Any audit that gives you two months' notice they're coming and is conducted by non-
clinicians is farcical. It's known as the 'pre-accreditation shuffle': give the walls a fresh coat
of paint, buy some new outdoor furniture, roster extra staff on the audit day, go back and fill
in all the blanks on your paperwork and don't serve the cold party pies until the next week.11
We recommend that the new Care Quality Commissioner (within the new Aged Care Commission)
develop a more effective risk-based approach to accreditation, using information from a single
integrated database and from unannounced visits (after the initial accreditation visit) to ensure that
providers meet core standards for safety, quality of care and quality of life.
We recommend discontinuing planned accreditation visits and replacing them exclusively with
unannounced visits. High-performing residential services with a low risk profile will have fewer visits
so the Care Quality Commissioner can focus on facilities with higher risk.
It is also important that the capability of assessment teams is strengthened, and that assessment
against standards is consistent and objective, reflecting attainment of specified outcome measures
for all core standards.
Polypharmacy and medication errors were frequently raised in our consultations. We recommend
conducting resident medication management reviews on admission to a nursing home, after any
hospitalisation, upon any worsening of medical condition or behaviour, or on any change in
medication regime. We also recommend limits on the use of restrictive practices in residential aged
care, and recording and reporting when such practices are used.
5) Enhanced complaints handling
Submissions to the review reported widespread dissatisfaction with complaints handling by facilities
and by the Aged Care Complaints Commissioner. We appreciate the importance of differentiating
dissatisfaction with complaint outcomes from concerns about complaints processes, such as lack of
11
Submission (ID#617437173).
xxxi
timeliness, clarity and fairness. However, we regard effective complaints handling as a key aspect of
the regulation of quality in aged care, and consider that the current model needs some
improvements.
All residential aged care providers must have well-publicised, clear, prompt and fair complaint-
handling processes. The new Complaints Commissioner within the new Aged Care Commission must
be an exemplar of prompt and fair complaint handling.
We recognise the achievements of the current Aged Care Complaints Commissioner since it became
an independent agency in 2016. It is essential that the autonomy of the Complaints Commissioner,
as an independent ombudsman-like office, be maintained in the new Aged Care Commission.
We believe that the Complaints Commissioner needs increased statutory powers, to enable the
Commissioner to share information and to publicly name non-compliant providers (subject to due
process protections). We recommend that the Commissioner develop an online register with
information about the nature of complaints received and how they have been resolved (including
investigation outcomes).
Conclusion
The extensive feedback to our Review, and our analysis of the performance of Australia's aged care
quality regulatory processes compared with systems in similar developed countries, confirms that
further reform is necessary.
We believe that implementation of the recommendations of this Review will help prevent a repeat
of the regulatory failures that occurred at Oakden with such tragic consequences.
xxxii
Recommendations
1. Establish an independent Aged Care Quality and Safety Commission to centralise accreditation,
compliance and complaints handling.
Actions
Establish an Aged Care Commissioner who chairs umbrella regulatory body, overseen by an Aged
Care Commission Board, with:
(i) Care Quality Commissioner
(ii) Complaints Commissioner
(iii) Consumer Commissioner
(iv) Chief Clinical Advisor
2. The Aged Care Commission will develop and manage a centralised database for real-time
information sharing.
Actions
(i) The Australian Health Ministers' Advisory Council (AHMAC) consider options to improve sharing
patient / resident information between state operated acute and mental health services and the
Commission
(ii) The Commission will develop options to capture the views of residents, families and staff all
year round
(iii) Assessment contact visits must seek the view of 20 per cent of consumers and their
representatives
(iv) The Commission will contemporise risk indicators
(v) Residential aged care facilities must report risk indicators to the Commission when they occur
(vi) The Commission will build an expanded risk-profiling tool that incorporates additional
intelligence to better support risk management
(vii) The Commission will develop a robust process to review provider risk profiling and publish
outcomes
(viii) The Commission will share information with residential aged care facilities about common areas
of non-compliance and complaints
3. All residential aged care services in receipt of Commonwealth funding must participate in the
National Quality Indicators Program.
Actions
(i) The Commission will develop and pilot an algorithm to support performance benchmarking
(ii) The Commission will provide residential aged care facilities with a 'performance card'
comparing them to services with similar profiles
(iii) The Commission will pilot and validate additional clinical and consumer experience quality
indicators
xxxiii
4. The Aged Care Commission will implement a star-rated system for public reporting of provider
performance.
Actions
(i) Residential aged care services rated against key domains
(ii) Adopt mandatory reporting of provider performance against quality indicators
(iii) Publish accessible, plain English residential service performance reports on the My Aged Care
website (in one place)
(iv) Develop tools to enable consumers to compare the performance of residential services in an
area
5. The Aged Care Commission will support consumers and their representatives to exercise their
rights.
Actions
(i) The Consumer Commissioner, in partnership with the Complaints Commissioner, will promote
and protect consumer rights
(ii) All approved providers must inform and educate consumers and their representatives about
consumer rights
(iii) All approved providers must ensure all staff undertake regular Older Persons Advocacy Network
education on consumer rights
6. Enact a serious incident response scheme (SIRS) for aged care.
Actions
(i) The SIRS will require approved providers to inform the Aged Care Commission of:
(a) an allegation or a suspicion on reasonable grounds of a serious incident; and
(b) the outcome of an investigation into a serious incident, including findings and action taken.
(ii) The Aged Care Commission will monitor and oversee the approved provider's investigation of,
and response to, serious incidents and will be empowered to conduct investigations of such
incidents.
7. Aged care standards will limit the use of restrictive practices in residential aged care.
Actions
(i) Any restrictive practice should be the least restrictive and used only:
(a) as a last resort, after alternative strategies have been considered, to prevent serious physical
harm;
(b) to the extent necessary and proportionate to the risk of harm;
(c) with the approval of a person authorised by statute to make this decision;
(d) as prescribed by a person's behaviour support plan; and
(e) when subject to regular review.
(ii) Approved providers must record and report the use of restrictive practices in residential aged
care to the Aged Care Commission
(iii) Accreditation assessments will review the use of psychotropic agents
(iv) Chief Clinical Advisor must approve the use of antipsychotic medications for aged care residents
xxxiv
8. Ongoing accreditation, with unannounced visits, to assure safety and quality of residential aged
care.
Actions
(i) The initial accreditation visit will be announced.
(ii) Eliminate re-accreditation visits and replace with unannounced visits:
(a) conducted over at least two days;
(b) assess residential service performance against all standards;
(c) risk-based process used to determine frequency and rigour of visits.
9. Ensure that assessment against Standards is consistent, objective and reflective of current
expectations of care.
Actions
(i) Strengthen capability of assessment teams
(ii) Clearly define outcome measures in standards guidance material, with reference to best-
practice resources for clinical measures (i.e. clinical care and clinical governance)
(iii) Work with the Australian Commission on Safety and Quality in Health Care to develop a clinical
governance framework and clearer guidance on assessment of clinical care measures to ensure
they are fit for purpose for residential services
(iv) Review Aged Care Standards every five years to ensure that they are fit for purpose
(v) A Residential Medication Management Review must be conducted on admission for residents
to an aged care service, after any hospitalisation, upon deterioration of behaviour or any
change in medication regime
10. Enhance complaints handling.
Actions
(i) Increase the powers of the Complaints Commissioner
(ii) The Complaints Commissioner will modify the Australian Open Disclosure Framework for
residential aged care
(iii) Residential services will adopt the modified open disclosure framework
(iv) Complaints Commissioner will develop an online register of all complaints received and their
handling
(v) The Complaints Commissioner will track and publish outcomes of complaints referred to other
bodies
(vi) Clarify processes for reporting concerns raised by visitors participating in the Community
Visitors Scheme
xxxv
PART 1 Aged care quality regulation in
Australia
Chapter 1: Introduction
When we enter residential aged care, we expect it to be a safe home, and a place of good quality
care. We rely on the Commonwealth's regulation of aged care to ensure that people in residential
aged care facilities know they are safe, well cared for and have a good quality of life. With over a
quarter of a million12 Australians using residential care each year, including some of the most
vulnerable in our community, it is essential that it delivers quality care and that confidence among
the community is maintained.
In general, residential aged care facilities provide a high standard of care to older Australians.
Nevertheless, reports in early 2017 of care failures in the Makk and McLeay wards at the Oakden
Older Persons Mental Health Service in South Australia (Oakden), and in a number of other
residential care facilities, have demonstrated serious flaws and dented public confidence. Headlines
such as "Oakden nursing home abuse and secrecy creates crisis in confidence amid ongoing
government secrecy"13 and allegations of abuse and poor care of nursing home residents are
damaging to public confidence and raise questions that need to be answered. Poor care in some
facilities also risks undermining the efforts of the majority of residential aged care providers that are
committed to providing good-quality services. As noted by Aged Care Crisis in its submission, "aged
care is a sector where trust and trustworthiness are vitally important".14 People must be able to
enter residential aged care and know 'this place is right for me'.
Failures such as those at Oakden can have catastrophic consequences for residents, including
potentially resulting in illness, injury or death. They can be traumatic for staff, who lose confidence
in their ability to perform their roles properly, and confronting for professionals in regulatory roles,
who take their responsibility to make services as safe as possible seriously.
It is important for everyone that we use a critical incident such as events at Oakden to stop and
reflect on what has happened, what the contributing factors might be, and how to prevent a
recurrence. In some fields, such as clinical care and transportation, analysis of critical cases is a core
12
Around 235,000 using permanent residential care, plus those using residential respite care.
13
Miles Kemp, 10 June 2017, Adelaide Now (online), http://www.adelaidenow.com.au/news/south-
australia/oakden-nursing-home-abuse-and-secrecy-creates-crisis-in-confidence-amid-ongoing-government-
secrecy/news-story/5fb80be611b92d57bfa29f364b581da3
14
Aged Care Crisis submission (ID#341409579).
1
strategy for improving safety and quality.15 We must analyse Oakden and use this sentinel case to
understand how safety and quality in aged care can be improved.
In the wake of the failures at Oakden, the Australian Government commissioned an independent
review of the Commonwealth's aged care quality regulatory processes to determine why they did
not more quickly identify the extent of the failures of care at Makk and McLeay wards. On 11 May
2017, we were appointed as joint reviewers to undertake this important project. We were asked to
examine what happened at Oakden, and to propose any necessary reforms to the regulation of aged
care generally that might prevent a repeat of such incidents and raise quality and confidence in the
residential aged care system.
Context
Like every developed country, Australia is facing the challenge of demographic change that is driving
growth in demand for aged care. The number of Australians aged over 65 is rising and, over the next
three decades, the proportion of the population aged over 85 will more than double.16 This
demographic change is driving significant growth in demand for aged care. People prefer to be cared
for in their homes, and policy changes over the last decade have significantly expanded the
availability of home care packages.17 This also means that the population moving into residential
aged care is older, frailer and has more complex care needs.
There have been many reviews of Australia's aged care system as it has evolved over time. Many
have been broad in scope, such as the Productivity Commission's wide-ranging inquiry in 2011,
which examined the whole aged care system, or the Legislated Review of Aged Care, which
examined the effects of legislative changes in 2012-13 that ranged across access, pricing, equity
issues and workforce matters.18 This Review is narrower, focusing specifically on the regulation of
quality in residential care.
There are broader health reform initiatives that also address issues relevant to older Australians,
particularly integration of care provided across health and ageing services. In August 2017, Health
Ministers endorsed the Fifth National Mental Health and Suicide Prevention Plan 2017-2022 and its
Implementation Plan. The Fifth Plan is focused on improvements across eight targeted priority areas
and calls for ongoing collaboration and engagement across jurisdictions to achieve meaningful
reform.
Aged care and mental health are also priority areas for Primary Health Networks. These were
established in 2015 to improve coordination of care to ensure patients receive the right care in the
right place at the right time. We hope that over time these reforms will coordinate what is often
fragmented and disjointed health services and place the consumer at the centre of care.
15
Woloshynowych, M., et al., 2005, 'The investigation and analysis of critical incidents and adverse events in
healthcare', Health Technology Assess, Vol. 9(19), pp. 1-143.
16
Tune, D., 2017, Legislated review of aged care, p. 38.
17
Tune, D., 2017, Legislated review of aged care, pp. 49-51.
18
Productivity Commission, 2011, Caring for older Australians; Tune, D., 2017, Legislated review of aged care.
2
Commonwealth legislation establishes processes for the regulation of care delivered to all aged care
residents. Its goal is to ensure providers deliver appropriate care that meets expected standards. The
legislative framework includes processes for accreditation, monitoring, reviewing and investigating
compliance with standards, and resolving complaints. The performance of Australia's accreditation
and complaints systems has been favourably compared with other Organisation for Economic Co-
operation and Development (OECD) countries.19 However, like other countries, while aspects of
Australian aged care regulation are strong, some parts show room for improvement.
As Australia's aged care system has grown and evolved, it has undergone significant reform across
most aspects of its operation. Over the past two decades, the reforms initiated under the Aged Care
Act 1997--including the creation of the Australian Aged Care Quality Agency in 2014 and the Aged
Care Complaints Commissioner in 2016--have seen significant improvements in the quality of
residential aged care. The reforms sought to make changes such as creating consumer choice and
control in home care, independence from government in complaints handling, changing how aged
care is funded and, most recently, the proposed introduction of care indicators.
Care involves not only people's health, but also "support and care activities undertaken to ensure
people with loss of function and capacity are able to maintain their wellbeing."20 The National Aged
Care Alliance described as 'quality care' services that are:
consumer-driven, have a wellness and reablement focus, are affordable for the community
and individuals, sustainably provided, and are inclusive of the diversity of older people
according to their needs.21
Regulation for quality is intended to ensure that quality of care is provided to every person in aged
care, regardless of circumstance. It seeks to achieve this by focusing on the needs of consumers, on
outcomes, and on improving systems, not only on protecting individual people.22 Effective aged care
delivers quality of life for care recipients, not simply quality of care. It is important, therefore, that
regulation is built on an understanding of consumer needs and experiences. Current reforms, such
as piloting of quality-of-life indicators,23 and developing a Single Quality Framework,24 are directed to
ensuring quality regulation has a strong consumer focus.
19
OECD/European Commission, June 2013, Country note: Australia--a good life in old age,
https://www.oecd.org/els/health-systems/Australia-OECD-EC-Good-Time-in-Old-Age.pdf
20
Milte, R., et al., 2017, 'Evaluating the quality of care received in long-term care facilities from a consumer
perspective: development and construct validity of the Consumer Choice Index-Six Dimension instrument',
Ageing & Society, pp. 1-23.
21
National Aged Care Alliance, 2015, Blueprint series: enhancing the quality of life of older people through
better support and care, p. 3.
22
See, for example, Paterson R, Review of Future Governance Arrangements for Safety and Quality in Health
Care, 2005, National Arrangements for Safety and Quality of Health Care in Australia, p. 1.
23
KPMG, 2017, Department of Health - key findings and outcomes - National Aged Care Quality Indicator
Program - consumer experience and quality of life pilot outcomes for residential care.
24
Department of Health, Single quality framework: focus on consumers,
https://agedcare.health.gov.au/quality/single-quality-framework-focus-on-consumers.
3
Oakden--a critical incident
Oakden provided specialised residential care to older people with complex mental health care needs
and people with severe dementia. The residents represented some of the most vulnerable people in
our community. Oakden was run by the Northern Adelaide Local Health Network, part of the South
Australian Government's health care service. Since becoming a Commonwealth-funded accredited
aged care service, Oakden had experienced significant challenges in delivering quality care. At one
point in 2008, its problems were so severe that it briefly lost accreditation and was penalised by
Commonwealth sanctions; its operators struggled to bring it back to compliance and delivery of
quality care.
By late 2008, it was again accredited and sanctions were lifted. For many years thereafter,
accreditation of Oakden proceeded routinely. However, a complaint by a family in 2016 about the
care experienced at Oakden triggered a series of events that ultimately uncovered care systems so
flawed, management so deficient and facilities so inadequate, that the South Australian Government
decided to shut the facility down, and multiple staff members were referred to the regulator of
health practitioners or the police.
The Oakden case is dramatic and significant. When it was reviewed in early 2017 by the South
Australian Chief Psychiatrist, he and his three co-reviewers observed "a system that gave all
members of the Review little comfort. For each of us, we saw aspects of a mental health system that
we had thought confined to history. Sadly, this was not the case."25 His report, and this Review,
reflect on this critical incident, use it as a lens through which to view Australia's regulation of
residential aged care, and consider how regulation might be improved.
This Review
Our Review has identified that current regulatory mechanisms do not consistently provide the
assurance of quality that the community needs and expects. We have made a series of
recommendations in this report that build on good regulatory practice and the lessons of Oakden.
They include changes to how the regulators are structured, what their goals are and how they do
their work.
We believe that implementation of the recommendations of this Review will help remedy
"deficiencies in the Commonwealth's aged care regulatory system which might have prevented the
early detection and swift remediation" of failures in care such as those at Oakden.26 Our consultation
meetings and the 436 submissions we received--from families, community groups, aged care
workers and residential aged care facility providers--confirm our conclusion that reform is
necessary.
25
Groves, A., et al., 2017, The Oakden report, South Australia Department for Health and Ageing, p. 115.
26
The Hon Ken Wyatt AM, MP, 1 May 2017, 'Federal aged care minister to commission review of aged care
quality regulatory processes', Media release.
4
We thank the many individuals and organisations that assisted us. Through interviews, meetings,
submissions and advice, they have provided information, increased our understanding and
supported our analysis. We trust that, through learning the lessons of Oakden and adopting our
recommendations, better regulation and support will be provided to residential aged care, and the
care received by each of us who uses those services will be better as a result.
5
Chapter 2: Australia's current regulatory system
Introduction
The Australian Government has an extensive regulatory system in place aimed at ensuring that
people in residential care homes receive quality care. This regulatory framework has evolved over
the last two decades, and continues to do so.
The Living Longer Living Better reforms of 2013--the government's response to the Productivity
Commission's 2011 report Caring for older Australians--made changes to the regulatory system
governing the quality of care received by consumers of aged care in both home and residential
care.27 The reforms signal an increased emphasis on being cared for in the home, and a shift to a
'consumer-directed' model of home care.28
The reforms have also given consumers more control over their care, whether in their own homes or
in a residential home, providing more information, choice and avenues of complaint, while aiming to
ensure they receive a high quality of care. The goal of the reform has been described as an aged care
system that is more consumer-driven, more market-based and less regulated.29
The Aged Care Act 1997 (the Act) provides the basis for Commonwealth-subsidised home care
packages and residential care, including financing that care. It sets out the requirements for approval
as a provider of government-funded aged care, the allocation of aged care places, approval and
classification of care recipients, the rights of consumers and the subsidies paid by the government.
The Act has been amended many times in an effort to establish a regulatory framework that
protects consumers and promotes quality of care (and continuous quality improvement), to meet
the needs and expectations of consumers.
The Act in its current form has mechanisms to regulate for quality, including accreditation and
monitoring of approved providers, managing non-compliance, complaints mechanisms and advocacy
services for consumers. It is a complex piece of legislation, with subordinate legislation that details
17 Principles of Aged Care, many with additional schedules.
The aged care principles that are especially relevant to the provision and regulation of quality
residential care are:
Approved Provider Principles
Accountability Principles
Quality of Care Principles (including the Accreditation Standards, which form a sub-set)
Sanctions Principles
27
Productivity Commission, 2011, Caring for older Australians.
28
Department of Health, Why is aged care changing? www.agedcare.gov.au. From 27 February 2017, funding
for a home care package follows the consumer.
29
Aged Care Sector Committee, 2016, Aged Care Roadmap.
6
User Rights Principles
Complaints Principles
Providers of residential aged care are expected to adhere to the provisions of the Act, and can be
penalised if they fail to do so.
In addition, there is separate legislation, the Aged Care Quality Agency Act 2013, which establishes
one of the regulators, the Australian Aged Care Quality Agency. This Act also has a set of principles in
subordinate legislation.
The two Acts and their subordinate legislation, including the 17 Principles, inform the work of the
three key players in the regulatory environment of aged care: the Australian Government
Department of Health (the Department), the Australian Aged Care Quality Agency (the Quality
Agency) and the Aged Care Complaints Commissioner (the Complaints Commissioner). The three
arms of the regulatory system evaluate the performance of providers against the Act and Principles.
Consumers of aged care have rights under the Act and the Principles, and can expect to receive care
in line with the standards the legislation embodies. The three regulators are increasingly making
information available to consumers to help them make more informed choices relating to their care.
However, as noted later in this Report, this process is in its early stages.
These three organisations form a kind of 'tripartite' regulation of aged care and are the focus of this
report, but they are not the only regulators involved. Other agencies have significant involvement,
including the Australian Health Practitioner Regulation Agency, state and territory health
departments (for example, South Australian Department of Health, which provided aged care at
Oakden), and law enforcement bodies, particularly in situations such as alleged assault or fraud.
A tripartite system
Each of the three main regulatory agencies plays a part in regulating the delivery of quality
residential aged care. While the three regulatory agencies have distinct functions, the work of the
Department and the Quality Agency, in particular, overlaps as they both monitor providers'
compliance with their responsibilities under the Act.
In summary, the responsibilities of the three regulatory arms are:
The Department of Health administers funding to all aged care providers, including
residential aged care homes. It regulates the 'gateway' for providers to enter the system
where they become eligible to receive government funding, by approving providers for the
type of care they provide--residential, home care or mixed.30 It also has the power to
enforce compliance with the Act and to remove providers from the system by revoking their
approval. The Department supports residential care providers in their efforts to comply with
their obligations under the Act through education. The Department publishes compliance
30
'Mixed' care refers to the small number of providers that operate across residential and home care. Four out
of five providers operate only one type of care. See Aged Care Financing Authority, 2016, Annual Report on the
Funding and Financing of the Aged Care Sector, p. xii.
7
decisions on the My Aged Care website,31 which is the window to the aged care system for
consumers.
The Quality Agency accredits residential aged care facilities against the Accreditation
Standards that are legislated in the Quality of Care Principles. It monitors compliance with
expected standards of care through audits and site visits. It notifies the Department of non-
compliance with the Accreditation Standards by providers, and both the Department and
the Quality Agency have processes to deal with non-compliance. Results of the Agency's
reviews are publicly available to inform consumer choice.
The Complaints Commissioner deals with complaints from individuals about aged care
services, including about the quality of care residents are receiving, and attempts to resolve
those with the provider. If a complaint indicates that a provider may be non-compliant, the
Commissioner can refer a provider at any time to the Quality Agency or the Department for
compliance action, depending on the type and seriousness of the complaint.
There are formal referral arrangements among the three agencies, detailed in memorandums of
understanding. These apply if one agency identifies systemic risks or issues appropriate to the
jurisdiction of a different agency, or in the event of providers not complying with their
responsibilities to provide quality care in accordance with the Accreditation Standards. These
arrangements, along with general information sharing, are intended to result in a coordinated
approach to protecting the safety and well-being of older Australians receiving care.
This tripartite system has existed in various forms for nearly two decades, but has altered
significantly since 2014. The Quality Agency was established as a statutory authority from 1 January
2014, under the Aged Care Quality Agency Act 2013. Its predecessor, the Aged Care Standards and
Accreditation Agency Ltd, had been an independent company established by the Commonwealth
Government under the Aged Care Act 1997.32 The period of care under scrutiny at Oakden,
examined in chapter three, traverses the time of both the Accreditation Agency and the Quality
Agency.
The Complaints Commissioner was established as a separate entity in its current form on 1 January
2016. Previously, consumer complaints had been processed by the Complaints Investigation Scheme
(later known as the Aged Care Complaints Scheme), which had been in operation since 1 May 2007,
administered within the Department.33 Prior to 2016, only reviews of complaints were considered by
an Aged Care Complaints Commissioner outside the Department, whereas now all complaints are
handled independently by the Complaints Commissioner.
31
www.myagedcare.gov.au
32
Senate Community Affairs References Committee, 2005, Quality and equity in aged care,
http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Completed_inquirie
s/2004-07/aged_care04/report/c03. The Agency was appointed as the 'accreditation body' for residential care
services and the Accreditation Grant Principles 1999, made in accordance with the Aged Care Act, specified its
functions and procedures.
33
From Guidelines for the Aged Care Complaints Commissioner, May 2016, p. 1,
https://www.agedcarecomplaints.gov.au/raising-a-complaint/aged-care-complaints-guidelines/
8
Provider approval
To enter the government-subsidised system, providers of residential aged care must first seek
approval from the Department. They must be approved for the particular type of aged care services
they are providing (home, residential or mixed). As at June 2016, there were 949 approved
residential aged care providers.
The provider seeking approval is not the specific aged care facility, but its owner and / or operator.
The requirements that providers need to meet to be approved are set out in the Act and in the
Approved Provider Principles 2014, which dictate what should be considered in assessing an
applicant's suitability to provide residential aged care.
The approval of providers for Commonwealth subsidies is largely dependent on the Department
examining their financial management records, governance, structure and staffing. Applicants must
meet a number of criteria relating to financial management and governance. They must
demonstrate their experience in providing relevant types of care, an understanding of their
responsibilities (such as compliance with standards), and that they have the appropriate systems to
meet those responsibilities. In practice, the regulation of approved provider status appears to place
emphasis on financial and governance aspects, but these are only part of what the Act says approval
requires.34
The Department has the power to revoke approved provider status if the suitability criteria are no
longer met, or in the rare case where a provider is found to have given false or misleading
information.
Approved provider responsibilities
The responsibilities of approved providers are set out in Chapter 4 of the Act, and the associated
Quality of Care Principles, User Rights Principles and Accountability Principles.
Quality of Care Principles
Provider responsibilities to deliver quality care are detailed in the Quality of Care Principles,35 which
cover general care and services that need to be provided to all residents in aged care homes. The
principles cover everything from furnishings and meals to assistance with daily living, therapy and
nursing services and emotional support. In residential homes, this includes maintaining sufficient
appropriately skilled staff to meet the needs of care recipients.
34
Aged Care Act 1997, section 8-3. See also chapters 4.1, 4.2 and 4.3 of the Act. See Section 2.4 of the
application form, and 2.6.2. See 2.16 in Department of Health, Guidance for applicants seeking approval to
provide aged care, https://agedcare.health.gov.au/funding/the-guidance-for-applicants-seeking-approval-to-
provide-aged-care
35
Quality of Care Principles 2014, made under section 96-1 or the Aged Care Act 1997, Schedule 1.
9
The Accreditation Standards form Schedule 2 of the principles. They are "standards for quality of
care and quality of life for the provision of residential care".36 Although located under the Aged Care
Act, they form the reference standard for the primary work of the Quality Agency.
User Rights Principles
The User Rights Principles provide information on the rights of residents. They spell out the practical
aspects of their rights, such as security of tenure, access to consumer representatives and advocates,
complaint resolution mechanisms and the information they must be given. Schedule 1 of the
principles, called the Charter of Care Recipients' Rights and Responsibilities, also covers quality-of-
life aspects, such as the rights to quality care, to be treated with dignity and respect, to have privacy
and security, to have cultural and religious views respected, and to have input into decision-making
that affects care recipients.37
Accountability Principles
The Accountability Principles cover providers' responsibilities to comply with the conditions
regarding, for instance, the allocation of places and assessment of care needs. In addition, the
principles include a specific provision that providers must report alleged assaults directly to the
Secretary of the Department of Health.38
Provider accreditation
As well as seeking approval from the Department of Health, the provider must apply to the Quality
Agency for accreditation of its residential care services.
The Quality Agency assesses the performance of approved residential care providers against the
Accreditation Standards. The Quality Agency Principles, made under the Aged Care Quality Act,
describe the processes the Quality Agency uses to accredit an approved provider's service and
monitor their compliance with all aged care standards.39
There were 2,678 accredited residential aged care facilities in 2015-16.40
Accreditation Standards
The key Quality Agency function is to accredit residential aged care homes that receive funding from
the Commonwealth, and to monitor their compliance with standards of care. The Quality Agency's
approach is to engage actively with the sector and support providers to meet expected standards of
36
Quality of Care Principles, Part 2, Division 2.
37
Charter of Care Recipients' Rights and Responsibilities.
38
Aged Care Act, Division 64; Provider Approval Application form section 2.4,
https://agedcare.health.gov.au/application-for-approval-to-provide-aged-care-new-applicant-form
39
Quality Agency Principles 2013, made under Section 53 of the Australian Aged Care Quality Agency Act 2013.
40
Australian Aged Care Quality Agency (AACQA), Annual report 2015-16.
10
care.41 Promoting high-quality care, innovation in quality management and continuous improvement
by providers are specific functions of the Quality Agency. To fulfil those functions, the Quality
Agency offers targeted education services and workshops, as well as standardised training packages
for providers.42
For a facility to be accredited, it must meet four Accreditation Standards, relating to:
1. the facility's management systems, staffing and organisational development
2. the health and personal care the home provides to its residents
3. the lifestyle residents can lead
4. the physical environment, including the safety of that environment.
Within those four standards, there are 44 outcomes providers aim to meet. The Accreditation
Standards establish minimum quality standards against the 44 outcomes. In 2016, nearly 98 per cent
of providers met all 44 outcomes across all four standards.
Providers are not assessed on a sliding scale against each outcome, but are simply determined either
to have met or not met the particular outcome. One outcome under each standard the provider
needs to meet is "continuous improvement"; providers must have in place a plan for continuous
improvement.43
The standards are not intended to be prescriptive, but to guide the delivery of quality care. They are:
...intended to provide a structured approach to the management of quality and represent
clear statements of expected performance. They do not provide an instruction or recipe for
satisfying expectations but, rather, opportunities to pursue quality in ways that best suit the
characteristics of each individual residential care service and the needs of its care recipients.
It is not expected that all residential care services should respond to a standard in the same
way.44
Accreditation process
Initial accreditation of newly approved providers involves the Quality Agency conducting a desk
audit to ascertain the residential home's standards, which happens before residents move in (Figure
1).45 The Quality Agency visits the site (an assessment contact, explained in more detail below)
between one and two months after accreditation has been granted.46 When a provider is accredited
for the first time, the accreditation period lasts for one year. The Quality Agency makes available a
suite of training and other tools to explain the accreditation process to providers.47
41
AACQA, Corporate Plan 2017 to 2021, http://www.aacqa.gov.au/about-
us/CORPORATEPLAN2017to2021V6.6.pdf/view
42
AACQA, Education, http://www.aacqa.gov.au/providers/education
43
Quality Agency Principles 2013.
44
Quality of Care Principles, Division 2 - Accreditation Standards, 11 - Application of Accreditation Standards.
45
Quality surveyor handbook, August 2017, p. 15.
46
Quality surveyor handbook, August 2017, p. 15.
47
AACQA, Courses and workshops, https://www.aacqa.gov.au/providers/education/courses-and-
workshops/one-day-workshops
11
Residential care facilities must apply for re-accreditation six months prior to the expiry of their
current accreditation.48 Re-accreditation is usually for three years, although if the Quality Agency
considers the provider to pose a higher risk of non-compliance with any of the standards, the period
can be less than three years.
Figure 1. Residential aged care facility accreditation cycle49
Decision to
New home
Desk audit accredit
applies
(12 months)
Next assessment
contact scheduled
Care recipients No
move in
Yes,
Decision to
Assessment Accreditation approved
Site audit accredit
contact due to expire? provider
(up to 3 years)
applies
Next assessment
contact scheduled
The accreditation and assessment activities are undertaken by quality surveyors whom the Quality
Agency trains and registers. As at 4 September 2017, there were 318 surveyors across Australia.50
Monitoring compliance with the Accreditation
Standards
The Quality Agency uses three types of visits to accredited aged care homes to monitor and support
providers in meeting the quality of care Standards: site audits, assessment contacts and review
audits.
Quality surveyors can offer assistance during assessments to help providers make improvements,
including informing them about alternative ways of providing services and care, and possible causes
of any problems observed.51
48
The provider has to submit an application form, together with payment:
https://www.aacqa.gov.au/providers/residential-aged-care/copy_of_processes/accreditation-fees. The form
explains they need to apply six months before the current accreditation expires.
49
Source: Quality surveyor handbook, August 2017, p. 15.
50
Register at https://www.aacqa.gov.au/surveyor-register-6-09-17-1
51
Quality surveyor handbook, August 2017, pp. 40-41.
12
During site visits, quality surveyors discuss their findings with the provider, including any gaps they
observe, and give the provider an opportunity to supply further information about their service
delivery and performance.52
Site audits
After a home has applied for re-accreditation, the Quality Agency audits the facility's operations.
This includes a site audit, an announced site visit to assess performance against all 44 outcomes of
the Accreditation Standards. Each of the outcomes is assessed as met or not met. As part of the
process, providers complete a self-assessment of their performance against each outcome, which
they can submit during, or prior to, the site audit.53
The intention is that through assessing their own performance, providers discern their own
strengths and areas for improvement. Self-assessment is an internal review against the standards,
intended to culminate in the residential home creating plans for improvement. Developing their own
performance assessment also assists providers to prepare for both announced and unannounced
contact visits by quality surveyors.54
Assessment contacts
In addition to a comprehensive site audit, the Quality Agency conducts assessment contacts to
examine the provider's performance and assist the home's process of continuous improvement.55
There is considerable variation between assessment contacts, depending on the type of service and
the reason for the assessment, but their scope is always narrower than the scope for audits, focusing
only on specific aspects of care.56
The Quality Agency decides on the form and frequency of assessment contacts on a case-by-case
basis, considering the particular circumstances of the home and any indicators of risk of poor
performance.57 It also takes into account information from the public, consumers or their
representatives, and the media.58 Assessment contacts are also used to assist a provider with
continuous improvement, provide further information and education, monitor progress in cases
where a provider has not met any of the outcomes and is working towards re-establishing
compliance with that standard, and identify the need for further visits.59
The Quality Agency can initiate assessment contacts at any time, and they may be announced or
unannounced. It is government policy that each residential facility receives at least one
52
Quality surveyor handbook, August 2017, p. 41.
53
Self-assessment tool, Introduction, https://www.aacqa.gov.au/providers/residential-aged-
care/copy_of_processes/processes
54
Quality surveyor handbook, August 2017, Appendix 1, p. 79.
55
AACQA, Assessment contacts, http://www.aacqa.gov.au/providers/residential-aged-
care/copy_of_processes/assessment-contacts/assessment-contacts
56
Quality surveyor handbook, August 2017, p. 24.
57
Quality surveyor handbook, August 2017, p. 24.
58
Quality Agency Regulator Performance Self-Assessment Report 2015-16, p. 20.
59
Quality surveyor handbook, August 2017, p. 25.
13
unannounced assessment contact every year.60 The Quality Agency may also initiate assessment
contacts based on referrals from the Department or the Complaints Commissioner.
Review audits
In cases of suspected non-compliance, the Quality Agency may also perform a review audit, which
can be undertaken at any time, on an announced or unannounced basis.61
For a review audit, a review team can be on site for up to a week to assess the home's performance
against all 44 outcomes of the Accreditation Standards. The team interviews staff, residents or their
representatives, reviews documentation and observes the practices in the home.62
A review audit may be triggered by concerns identified during an assessment contact. Alternatively,
like an assessment contact, the Quality Agency may choose to conduct a review audit following a
referral from the Complaints Commissioner or the Department, or based on any other information it
has received.
The Quality Agency is required to conduct an immediate review audit if requested by the Secretary
of the Department.63 This happens when the Department has identified or suspects a breach of
compliance with the standards of such nature and / or severity that it justifies a full review of the
facility's accreditation status.64
In accordance with the Quality Agency Principles 2013, the Quality Agency has the power to refuse
re-accreditation following a review audit, or to revoke a service's accreditation.65 The Quality Agency
Chief Executive Officer (CEO) may also decide to vary the duration of accreditation. Loss of
accreditation means loss of Commonwealth subsidies for that facility.66
In the 2015-16 financial year, quality surveyors conducted 4,251 visits to the 2,678 accredited
facilities,67 made up as follows:
858 site audits
13 review audits (following concern that the Accreditation Standards were not being met)
3, 380 assessment contacts, including
o 2,866 unannounced visits
o 515 assessment contacts to monitor performance.68
60
AACQA, Assessment contacts, https://aacqa.gov.au/providers/residential-aged-
care/copy_of_processes/assessment-contacts/
61
AACQA, Review audits, www.aacqa.gov.au/providers/residential-aged-care/copy_of_processes/review-
audits/review-audits
62
AACQA, Annual Report 2015-2016.
63
Quality Agency Principles 2013, 2.35, within 3 business days.
64
This is a Type 4 referral. Type 1 is for information, Type 2 for consideration at the next visit and Type 3 is for
urgent consideration to alert the agency to more serious concerns. Aged Care Aged care compliance
operations manual, September 2014, p. 94.
65
Quality Agency Principles, 2.42.6.
66
Aged Care Aged care compliance operations manual, September 2014, pp. 93-94.
67
The number of accredited facilities has stayed relatively stable for the last five years, with a slight reduction
from 2718 in 2012-13 to 2768 in 2015-16.
14
As these figures show, most visits are unannounced assessment contacts, while review audits are
seldom conducted. Decisions not to re-accredit, or to revoke accreditation, are rare.
Consumer involvement
Feedback from residents and their experience of the quality of care and services they receive is an
integral part of site and review audits. Residential homes must inform consumers about a site audit
and tell them that they will have an opportunity to meet with the assessment team.69 As part of a
site audit, the assessors must interview a minimum of 10 per cent of residents and representatives,
such as family, a guardian or clinical representatives.70
Surveyors speak to over 50,000 residents and their families or representatives each year about the
quality of care the resident receives.71 Quality surveyors use the information from residents and
their representatives to support their assessment of management practices, systems and processes.
In June 2017, the Quality Agency implemented a set of core interview questions for a random
sample of residents during site audits.72 A random sample of 12 to 17 residents (depending on the
size of the aged care home) rate their experience for ten core questions. Response options (on a
ratings scale from never, sometimes, most of the time, always) are accompanied by visual analogues
to elicit responses from residents who may have communication difficulties or cognitive or sensory
impairment, and enable participation of a greater breath of residents.73 The Quality Agency uses this
information to supplement the interviews surveyors already conduct with residents, and to be able
to report in a consistent way on findings. The results are released in a consumer experience report,
published on the Agency's website with information on how residential aged care residents and their
representatives experience the quality of care.74
Managing non-compliance with the Standards
If an approved facility does not meet one or more of the 44 outcomes of the Accreditation
Standards, the Quality Agency sets a timetable for improvement that outlines a plan for the provider
to demonstrate that their performance is improving. During 2015-16, timetables for improvement
were issued to 70 facilities.75
68
AACQA, Annual report 2015-16, p. 11.
69
Quality Agency Principles, 2.12.
70
Quality Agency Principles, 2.15.
71
AACQA, September 2017, Quality Standard, https://www.aacqa.gov.au/providers/education/the-
standard/september-2017/consumer-report-to-cover-2018all-aged-care-homes2019
72
AACQA, Consumer experience reports, https://www.aacqa.gov.au/publications/consumer-experience-
reports
73
Wells, Y., Herd, A., Fetherstonhaugh, D., 2017, Developing a consumer experience report: Pilot
Stage, Australian Institute for Primary Care & Ageing, La Trobe University, pp. 14-15.
74
Quality Agency, Consumer experience reports, https://www.aacqa.gov.au/publications/consumer-
experience-reports.
75
AACQA, Annual report 2015-16, p. 23. Of the 70, 68 were resolved within the timeframe. This includes
homes that were on an existing timetable at the start of the financial year.
15
Generally, a timetable for improvement gives the provider three months to improve, and progress is
monitored during this period through assessment contact visits to the facility.76 In addition to a
timetable for improvement the Quality Agency can support the provider through education.77
If the provider fails to rectify the issues with its performance by the end of the period of the
timetable for improvement, the Quality Agency may conduct a review audit and may vary or revoke
the facility's accreditation. In addition, the Department may take separate action.78
If the Quality Agency identifies what the Act calls "serious risk" to the safety, health or well-being of
residents as a result of any unmet outcomes under the standards, the Agency contacts the provider
and requests a response to the issue within a very short timeframe. The Quality Agency considers
the provider's response when determining whether the failure to meet the applicable standards has
placed, or may place, the safety, health or well-being of care recipients at serious risk. 79
Determining whether "serious risk" exists is a separate statutory decision, and can be a consequence
of failure in just one expected outcome. Conversely, multiple 'not met' outcomes do not necessarily
lead to a decision of serious risk to a care recipient.80 The Quality Agency may also decide that the
failure has placed a care recipient at serious risk even if the failure has subsequently been addressed
by the provider.81
Under the Quality Agency Reporting Principles, the Agency must inform the Department when it has
made a decision that a serious risk to residents has been identified, so that the Department can
review information from the Agency and decide whether to take immediate action to ensure the
safety of residents.82 The Agency noted this was an area for potential improvement:
The Department and the Quality Agency have been working together to streamline the
exercise of their respective functions in this area, however, this is constrained by the current
legislation. Risk of harm to care recipients is subject to two different threshold tests, one by
the Quality Agency and another by the Department (both appealable to Administrative
Appeals Tribunal). The respective responsibilities and tests in dealing with this aspect of non-
compliance are not well understood by the sector.83
Reports to the Department of Health
In addition to reporting serious risk, the Quality Agency must advise the Department of all
accreditation decisions. This includes:
76
AACQA response to the submission by Combined Pensioners and Superannuants Association of NSW to the
Senate Committee investigating the future of Australia's aged care sector workforce (2016).
77
Quality Agency response to the submission by Combined Pensioners and Superannuants Association of NSW
to the Senate Committee investigating the future of Australia's aged care sector workforce (2016).
78
AACQA, Failure to meet the Standards, https://www.aacqa.gov.au/providers/residential-aged-
care/copy_of_processes/failure-to-meet-the-standards/failure-to-meet-the-standards
79
Quality Agency Principles, Part 5, 2.63.
80
Quality Agency Regulatory Bulletin, Issue 1, August 2017, p. 2.
81
AACQA, Serious risk, http://www.aacqa.gov.au/providers/news-and-resources/serious-risk
82
Quality Agency Reporting Principles, Part 2, 13 (2).
83
Quality Agency, personal communication.
16
advice about aged care services that do not meet the Accreditation Standards
if and when a timetable for improvement has been given to the provider
if, at the end of that process, there has not been sufficient improvement in the provider's
performance according to the Standards.84
The National Aged Care Compliance Program
The Department of Health runs the National Aged Care Compliance Program, under Chapter 4 Part
4.4 (consequences of non-compliance) of the Aged Care Act.
The emphasis of departmental compliance work is similar to that of the Quality Agency, focusing on
bringing providers back into compliance with the Act and the Accreditation Standards.
The Department's Aged care compliance operations manual details the steps it takes to bring
providers back to complying with their responsibilities in relation to the quality of care they provide,
accountability for that care and the rights of consumers.85 The manual also provides a step-by-step
guide to the processes the Department uses in deciding on a particular course of action.
According to the Department, the paramount consideration throughout the compliance process is
the health, welfare and interests of both current and future aged care consumers.86 The manual
states that compliance responses are determined on the basis of a process of risk assessment:
A systematic, risk-based program of compliance monitoring, assessment and action ensures
that the Department targets its available resources at the highest risks, and proactively
responds to changing and emerging risks.87
The Department encourages compliance through education as well as enforcement measures,
including sanctions. The goal is to encourage providers to voluntarily comply with their
responsibilities, with matters only escalated where necessary.88
Monitoring compliance with provider responsibilities
While the Quality Agency monitors providers' compliance with the Accreditation Standards within
each residential aged care home, the Department's role focuses on compliance by the approved
provider; in other words, the company or organisation that owns the aged care homes. The
Department's compliance activities are also broader, and extend to other obligations approved
providers need to meet, including their financial responsibilities.
According to the Department, a key element of the risk-based model is identifying and monitoring
providers considered to be at a higher risk of compliance failure. The Department gains relevant
information via formal and informal means, both from within the Department and from external
84
Quality Agency Principles.
85
Aged Care Act 1997, ss 4.1, 4.2 and 4.3.
86
Department of Social Services, Aged Care Compliance Policy Statement 2015-2017, p. 5; Aged care Aged
care compliance operations manual, September 2014, p. 7.
87
Aged care compliance operations manual, September 2014, p. 6.
88
Aged care compliance operations manual, September 2014, p. 9.
17
sources.89 For instance, the Department receives regular compulsory reports to monitor providers'
suitability to provide aged care, including their financial responsibilities, financial management and
appropriate claims for subsidies.90
Both the Complaints Commissioner and the Quality Agency may refer to the Department particular
issues relating to providers' general suitability that have been identified during their processes, but
that are out of scope of their respective roles.
The Department may also become aware of concerns in residential care homes from external
parties. These may come from a range of sources such as consumer advocacy groups, health
complaint bodies, media reports, direct contact from consumers, and letters to the Minister for
Health and Members of Parliament.91
In practice, the Department relies heavily on information from the Quality Agency and the
Complaints Commissioner to raise concerns about possible non-compliance. Both the Quality Agency
and the Complaints Commissioner refer cases of provider non-compliance with quality-of-care issues
to the National Aged Care Compliance Program. The memorandums of understanding among the
three bodies detail their roles and responsibilities and set out specific operational protocols for
formal cooperation in possible instances of non-compliance, as well as for general communication.
The Department does not appear to have memorandums of understanding or agreements with
other bodies, including the Australian Health Practitioner Regulation Agency, or state and territory
governments or statutory authorities.
The only instances where referrals do not come from the Quality Agency or the Complaints
Commissioner relate to compulsory reports; under the Act, approved providers must advise the
Department directly within 24 hours of incidents of alleged assaults reported to the police.92 They
must also report to the Department within 24 hours if a resident is missing and the absence has
been reported to the police.93 These cases are not investigated by the Department, as they are
police matters.
It should be noted that providers need only report the alleged assault to the Department, not the
outcome of any investigation. In its recent report, Elder abuse--a national legal response, the
Australian Law Reform Commission recommended that the government introduce a new serious
incident response scheme where providers are required to notify the outcome of an investigation of
a serious incident, and that the definition should be broadened to cover serious incidents of abuse
89
Aged care compliance operations manual, September 2014, p. 8.
90
Aged care compliance operations manual, September 2014, pp. 13, 15.
91
Department of Health, 2017, Review of National Aged Care Quality Regulatory Processes: Background Paper,
p. 4, https://consultations.health.gov.au/aged-care-access-and-quality-acaq/review-of-national-aged-care-
quality-regulatory-pr/
92
Complaints Commissioner, Submission to the Senate Community Affairs References Committee, p.11: the
previous Aged Care Complaints Investigation Scheme, which was administered by the Department, had
responsibility for compulsory reporting for alleged assaults. The compulsory reporting function remained with
the Department and did not transition to the Complaints Commissioner.
93
Department of Health, 2015-16 Report on the Operation of the Aged Care Act 1997, 10.4.
18
and neglect. This would include, for example, physical, sexual or financial abuse, cruel treatment,
unexplained serious injury or an incident that is part of a pattern of abuse.94
Managing provider non-compliance
In managing non-compliance, the Department's focus is always on returning the provider to
compliance as soon as possible. It assesses the risk to residents posed by non-compliance and
determines the most appropriate action to address the non-compliance following assessment of the
risk posed.
The legislative framework governing the Department's management of non-compliance, and the
procedures that guide the process, are involved and complex. The Department has several options
available to address non-compliance, from education and support through to the regulatory actions
available under Part 4.4 of the Act.95
In cases of potential non-compliance, the Department engages with the provider and gathers further
information through correspondence or meetings and active monitoring. In practice, the
Department relies heavily on the Quality Agency to visit sites to assess compliance issues against the
standards and collect information. Other forms of non-compliance can rely on information from the
Complaints Commissioner and the Department's own investigations. The Department can request
the provider to submit regular reports.96
Underpinning the decision to use a particular strategy is the Department's assessment of the level
and immediacy of the risk posed to residents, the nature and reasons for non-compliance, and the
provider's willingness and / or ability to rectify the non-compliance.
If the Department assesses risk to residents as minor, it will usually attempt to resolve the non-
compliance through education and support. A regulatory response drawing on its legislated powers
may be considered more appropriate if the risk to the residents is potentially more serious.97
The Department's compliance monitoring activities closely track and to a large extent rely on those
of the Quality Agency. Agency progress reports on providers' performance against a timetable for
improvement inform the Department's risk assessment and decision-making process about which
strategy to use in cases of non-compliance.
Administrative response
In some cases of non-compliance with low risk to residents, the Department may focus on educating
and informing providers of their responsibilities.98 In cases where the Quality Agency has issued a
94
Australian Law Reform Commission, 2017, Elder abuse--a national legal response, ALRC report 131,
Commonwealth of Australia, Recommendations 4.1 and 4.3. "Reportable assaults" are specified in the
Accountability Principles.
95
Department of Health, 2017, Review of National Aged Care Quality Regulatory Processes: Background Paper,
p. 4, https://consultations.health.gov.au/aged-care-access-and-quality-acaq/review-of-national-aged-care-
quality-regulatory-pr/
96
Aged care Aged care compliance operations manual, September 2014, pp. 19-24.
97
Aged care Aged care compliance operations manual, September 2014, p. 30.
19
timetable for improvement to a provider, the Department monitors the provider's progress through
the reports from the Quality Agency's assessment contacts during the timetable period.99 The
Department would usually contact or meet with the provider to discuss the issues.100
Regulatory response
If breaches of the Accreditation Standards are more serious, or the provider fails to address the
Department's concerns appropriately, placing residents at greater risk, the Department may enforce
compliance through its legislated powers. If the Department considers that the non-compliance by
the provider poses a severe and immediate risk to the safety, health or well-being of the residents,
the Department is able impose sanctions on the provider immediately.101 The most common way to
identify such a risk is through a "serious risk" report from the Quality Agency.102
However, under the Act and the Sanctions Principles, the Department has other options available
that do not require sanctions to be applied immediately, but may ultimately lead to sanctions being
imposed on the provider in cases of serious non-compliance.
The Department starts a process aimed at managing the provider back to complying with all relevant
standards of care as quickly as possible.
At each step, the provider is given an opportunity to demonstrate how they are addressing the
issues. The Department's monitoring of the provider generally aligns with the Quality Agency's
activities. For instance, if the Department issues a 'notice of non-compliance', providers need to
show they have lodged a plan for continuous improvement with the Quality Agency. If the
Department is satisfied, it issues a 'notice to remedy' and the provider signs an 'undertaking to
remedy', with an expiry date usually corresponding with the expiry of the Quality Agency's timetable
for improvement.103
If the provider does not achieve the specified outcomes, the Department may impose sanctions, but
may first give the provider a 'notice of intention to impose sanctions'. The Department may also give
the notice of intention if the provider has not made any submission in response to a notice of non-
compliance.104 In evaluating a provider's response to such a notice, the Department takes into
account the Quality Agency's assessment visit report at the end of the timetable for improvement.105
To impose sanctions on a provider, the Department must provide them with a sanctions notice,
which is also published on the My Aged Care website.
98
Department of Health, 2017, Review of National Aged Care Quality Regulatory Processes: Background Paper,
p. 4, https://consultations.health.gov.au/aged-care-access-and-quality-acaq/review-of-national-aged-care-
quality-regulatory-pr/
99
Department of Health, 2017, Review of National Aged Care Quality Regulatory Processes: Background Paper,
p. 4, https://consultations.health.gov.au/aged-care-access-and-quality-acaq/review-of-national-aged-care-
quality-regulatory-pr/
100
Aged care compliance operations manual, September 2014, p. 33.
101
Aged care compliance operations manual, September 2014, p. 34 - referred to as the 'short pathway'.
102
Aged care compliance operations manual, September 2014.
103
Aged care compliance operations manual, September 2014, pp. 42, 44.
104
Aged care compliance operations manual, September 2014, p. 47.
105
Aged care compliance operations manual, September 2014, p. 49.
20
The most common sanctions imposed are:
restricting subsidies for new care recipients
revoking provider approval unless the provider agrees to end the non-compliance, appoints
an administrator or adviser to assist the provider to manage a return to compliance, or
implements specific training.106
The Department monitors the facility closely, and providers must notify residents and their
representatives about the imposition of sanctions and answer their questions.
If a clinical advisor or administrator is appointed, the Department receives reports directly from
them, which means the Department has a direct link to the facility's progress, in addition to reports
from visits by the Quality Agency.107
During 2015-16, the Department issued six notices of decision to impose sanctions to four
providers. Five sanctions were imposed due to non-compliance in providing quality of care, while the
sixth was in relation to prudential matters.108
Complaints
The aged care legislation puts the rights of consumers at the centre of aged care regulation, through
the of Care Recipients' Rights and Responsibilities. The Charter specifically lists the right of care
recipients to complain and take action to resolve disputes, and to have access to advocates and
other avenues of redress.109
Providers are required to give a copy of the Charter to residents,110 and to have complaints
management processes in place.111 In addition to the Charter, one of the 44 outcomes under the
Accreditation Standards is that care recipients have access to internal and external complaints
mechanisms.112
When people are unable to resolve complaints directly with the provider, the Aged Care Complaints
Commissioner is the primary external mechanism for resolution of concerns.113 The Complaints
Commissioner handles complaints in accordance with the process described in the Complaints
Principles 2015.114
106
Aged care compliance operations manual, September 2014, p. 57.
107
Aged care compliance operations manual, September 2014, p. 67.
108
Department of Health, 2015-16 Report on the Operation of the Aged Care Act 1997, p. 90.
109
Aged Care Act 1997, Schedule 1 User Rights Principles 2014, 1(s) and 1(t).
110
User Rights Principles, Division 3, 11 (1). Department of Health, Legislated rights and responsibilities of
providers and consumers, https://agedcare.health.gov.au/programs-services/home-care/legislated-rights-and-
responsibilities-of-providers-and-consumers
111
Under the Quality of Care Principles, see Guidelines for the Aged Care Complaints Commissioner, version
2.0, p. 75, https://www.agedcarecomplaints.gov.au/raising-a-complaint/aged-care-complaints-guidelines/
112
Quality of Care Principles 2014, Schedule 2, Accreditation Standards.
113
Complaints Commissioner, Submission to the Senate Community Affairs References Committee, p. 4.
114
Complaints Principles 2015.
21
Role of the Aged Care Complaints Commissioner
The work of the Aged Care Complaints Commissioner completes the tripartite regulatory framework
that aims to ensure consumers receive quality aged care.
The Commissioner's complaints process seeks to protect the individual consumer whose care is the
subject of the complaint, but the process also supports compliance monitoring to ensure standards
of care are being met. The work of the Complaints Commissioner can give an 'early warning' of
deficiencies in care, and identify potential system failure and opportunities for improvement.115
While the Complaints Commissioner has a proactive education function, the role is largely reactive
and starts when concerns are raised.116
The work of the Complaints Commissioner
Anyone, not only care recipients or their family, can lodge a complaint about the quality of care
being delivered to consumers receiving aged care subsidies from the government.117 The Complaints
Commissioner receives more than 4,500 complaints per year, and more than 10,000 contacts
(including referrals from other organisations and matters out of the Commissioner's jurisdiction).118
There are 150 complaints-handling staff, located in offices in Adelaide, Brisbane, Canberra, Hobart,
Melbourne, Perth and Sydney. They deal with complainants over the phone, by email or letter, or by
visits to residential homes. Complaints officers may announce visits to residential homes--and do so
in most circumstances--but have the power to conduct unannounced visits if the circumstances
warrant it.
The Complaints Commissioner has the power to refer complaints or issues to external organisations
as part of complaints handling and investigation, such as public health units, the police, the coroner,
health care complaints bodies and the Australian Health Practitioner Regulation Agency.119
Responsibilities of the provider in the complaints process
Providers of aged care services are required to engage actively and cooperatively with the
complaints process and address the concerns that have been raised. If resolution of a complaint is
not possible or appropriate through facilitation or more informal processes, the Complaints
Commissioner has the power to direct a service provider to demonstrate that it is meeting its
responsibilities under the Act. The Commissioner must give notice to the provider before issuing a
direction.120
115
Complaints Commissioner, Submission to the Senate Community Affairs References Committee, p. 4.
116
Complaints Commissioner, Submission to the Senate Community Affairs References Committee, p. 1.
117
Guidelines for the Aged Care Complaints Commissioner, p. 28.
118
Complaints Commissioner, Submission to the Senate Community Affairs References Committee, p. 4.
119
Guidelines for the Aged Care Complaints Commissioner, p. 59.
120
Complaints Commissioner, Annual report 2016-17, p. 23.
22
If a provider fails to take action in response to a direction, the Complaints Commissioner refers the
provider to the Department for potential compliance action. The Commissioner relies on the
121
Department to enforce compliance with the direction.
According to the Complaints Commissioner, notices and directions are not required often because
"simply knowing these powers are there is usually enough to ensure providers respond
appropriately to complaints".122 During 2016-17, the Complaints Commissioner gave notices in
relation to 30 complaints.123 Twenty-seven were finalised without leading to directions. Of these,
two were finalised when the provider complied with the directions and addressed the issues to the
satisfaction of the Commissioner. Three were ongoing at the end of the reporting year. One
direction issued the previous year was referred to the Department following non-compliance by the
provider.124
Referral
As an integral part of the Commonwealth regulatory framework for aged care, the Commissioner
can refer complaints to the Quality Agency and / or the Department, depending on the type of non-
compliance and on the level of risk. During 2016-17, the Commissioner referred 468 issues to the
Quality Agency, and 33 to the Department.125 These figures reflect the Quality Agency's
responsibility for overseeing standards of care, which are the most frequent causes of complaints.
Through investigation of complaints, the Commissioner may become aware of broader issues with
the operations of a residential facility, and refer this to the Quality Agency. Referrals range from
recommending that the Quality Agency prioritise the issue in its plans, to the Commissioner
requesting the Agency to urgently undertake a comprehensive assessment against all relevant
standards. In the latter case, the Complaints Commissioner will always also inform the
Department.126 The Commissioner can also refer any complaint to the Department and vice versa.127
Education and support for consumers
The regulatory framework aims to promote consumer choice and control by raising awareness of
provider performance, and encouraging them to ask the 'right' questions and demand quality of
care, which in turn encourages provider performance.
121
Complaints Commissioner, Submission to the Senate Community Affairs References Committee, p. 7.
122
Complaints Commissioner, Submission to the Senate Community Affairs References Committee, p. 7.
123
Most of the notices related to complaints about residential care - personal communication, Complaints
Commissioner.
124
Complaints Commissioner, Annual report 2016-17, p. 23.
125
Complaints Commissioner, Annual report 2016-17, p. 24. Most of the referrals related to residential care -
personal communication, Complaints Commissioner.
126
MOU between Complaints Commissioner and Quality Agency, p. 6.
127
MOU between the Department and the Complaints Commissioner. When the Aged Care Complaints
Scheme was still in operation, providers were required to notify that Scheme in certain cases, including
reportable assaults and unexplained absences of people in care. The Department no longer handles complaints
but this requirement remains. The Complaints Commissioner will, however, be involved if someone other than
a provider makes a complaint in relation to assaults or unexplained absences. See Guidelines for the Aged Care
Complaints Commissioner, p. 32.
23
The Quality Agency publishes performance information on the quality of care and services provided
at the residential homes it has accredited. To inform consumer choice, its website lists all decisions
to accredit, re-accredit or revoke the accreditation of residential aged care homes. Audit reports on
each residential facility, which include detailed observations from surveyors, are also published on
the Quality Agency website.
The My Aged Care website, administered by the Department, also publishes the Accreditation
Standards and other information, and provides links to the Quality Agency website and to the
Complaints Commissioner.128
Other regulators of quality in aged care
While the Department, the Quality Agency and the Complaints Commissioner are the principal
regulators of aged care quality, other agencies play a significant role in the complex system of aged
care regulation.
Australian Health Practitioner Regulation Agency
The Australian Health Practitioner Regulation Agency (AHPRA) implements the National Registration
and Accreditation scheme, which regulates 14 health professions. The professions it regulates play
important roles in the aged care workforce, including all staff responsible for clinical assessment and
medical care. They include registered and enrolled nurses, as well as physiotherapists, occupational
therapists and certain other allied health staff. Together, they make up around 14 per cent of the
workforce in residential aged care homes.129 In order to practice in Australia they must be registered
with the relevant National Board, meet registration standards and follow the codes and guidelines
130
for their profession. AHPRA investigates complaints about the conduct or performance of
individual practitioners, including complaints passed on by the Complaints Commissioner, who has
no jurisdiction in relation to actions of individual registered health practitioners.131
The states and territories
Regulation by state and territory governments, as well as by local governments, impacts aged care
services across the country. State and territories have building and fire safety regulations and set the
minimum community standard for safety, health, and amenity of buildings.132
128
See My Aged Care, Accreditation standards, https://www.myagedcare.gov.au/quality-and-
complaints/accreditation-standards
129
According to the National Aged Care Workforce Census and Survey (NACWCS) there are 236,000 employees
in residential care homes. 70 per cent are personal care attendants, 10 per cent are nurses and 4 per cent are
allied health professionals. Allied health services include physiotherapy, speech pathology, occupational
therapy, dietetics, podiatry, and music therapy. NACWCS, 2016, p. XV, p. 13 and Tables 3.3 and 5.3.
130
Other aged care staff are currently not regulated. The NSW Parliamentary inquiry into registered nurses in
NSW nursing homes recommended the establishment of a licensing body for aged care workers.
131
Complaints Commissioner, Submission to the Senate Community Affairs References Committee, p. 7.
132
Productivity Commission, 2011, Caring for older Australians, Appendix F, p. F15.
24
State and territory governments also own and operate residential aged care homes. These make up
4.6 per cent of all residential facilities in Australia.133 The proportion of government-run facilities
increases with increasing remoteness, and in remote and very remote regions of Australia,
government-run organisations manage a much larger percentage of aged care services.134
Facilities owned by state and territory governments need to meet responsibilities and obligations for
quality care in relation to the particular government's aged care and health policies. The
requirements differ from jurisdiction to jurisdiction and some have implemented additional
regulations to ensure quality care. In addition, some aged care providers are also health care
providers regulated under the Australian Health Service Safety and Quality Accreditation Scheme.
The Makk and McLeay wards at Oakden were an example of this.
Other developments in quality care
National Aged Care Quality Indicator Program
While the regulatory system prescribes minimum standards, the National Aged Care Quality
Indicator Program aims to promote continuous quality improvement using evidence-based
performance measures. This is a voluntary program, under which providers of residential care can
compare their performance on a number of quality indicators against national data.
The program commenced on 1 January 2016 for residential care facilities, with three quality-of-care
indicators: pressure injuries; use of physical restraint; and unplanned weight loss. The My Aged Care
website will publish the quality indicator data when the data has been established as reliable.135 The
Department is also currently trialling consumer-focused quality-of-life indicators to broaden the
focus of the program and to bring objective assessment to areas of importance to consumers. A
report on the pilot of this work was published in March 2017.136
The Aged Care Roadmap proposes that indicators should be in place across both home and
residential care by 2018, and should be published on the service finder (on My Aged Care) in the
years thereafter. The use of indicators is touched on in chapter three and in part two of this report.
133
At 30 June 2016: not-for-profit providers were responsible for 56.3 per cent of operational residential care
places, for-profit providers were responsible for 39.1 per cent, and government providers were responsible for
4.6 per cent. Department of Health, 2015-16 Report on the Operation of the Aged Care Act 1997, p. 44.
134
Australian Institute of Health and Welfare, Explore services and places in aged care, https://www.gen-
agedcaredata.gov.au/Topics/Services-and-places-in-aged-care/Explore-services-and-places-in-aged-care. In
remote and very remote areas, the private sector manages only 2 per cent, and the remainder is managed by
the not-for-profit sector. It should be noted that these figures relate to all aged care services, not only
residential facilities.
135
Department of Health, About the National Aged Care Quality Indicator Program,
https://agedcare.health.gov.au/ensuring-quality/quality-indicators/about-the-national-aged-care-quality-
indicator-programme.
136
KPMG, 2017, Department of Health - key findings and outcomes - National Aged Care Quality Indicator
Program - consumer experience and quality of life pilot outcomes for residential care.
25
As the KPMG report on the National Quality Indicator Program consumer experience and quality of
life pilot study notes, there will be issues if the program remains voluntary.137
Single Quality Framework
In consultation with consumers, approved providers and the community, the Department has been
working towards developing a single set of aged care quality standards for all aged care services. The
new standards will replace the Accreditation Standards and, subject to government approval, will
take effect from 1 April 2018. According to the Department, the aim is to streamline the way
performance of providers is assessed and monitored against quality standards, and increase the
focus on quality outcomes for consumers.138
Work on the standards is continuing, following submissions to a consultation paper released in
March 2017.139 The proposed quality standards comprise eight individual standards, each having
several requirements that organisations would be required to demonstrate. The proposed standards
are:
1. Consumer dignity, autonomy and choice
2. Ongoing assessment and planning with consumers
3. Delivering personal care and clinical care
4. Delivering lifestyle services and supports
5. Service environment
6. Feedback and complaints
7. Human resources
8. Organisational governance.140
Each of the draft standards includes a consumer outcome (eg, "I am treated with dignity and
respect"), an organisation statement (eg,"The organisation has a culture of inclusion, acceptance
and respect for consumers") and a set of requirements (eg, "The organisation demonstrates that
each consumer's identity, culture and diversity is respected").141
137
KPMG, 2017, Department of Health - key findings and outcomes - National Aged Care Quality Indicator
Program - consumer experience and quality of life pilot outcomes for residential care, p. 15.
138
Department of Health, Single quality framework: focus on consumers,
https://agedcare.health.gov.au/quality/single-quality-framework-focus-on-consumers.
139
Department of Health, 2017, Single Quality Framework: draft Aged Care Quality Standards consultation
paper, https://consultations.health.gov.au/aged-care-access-and-quality-acaq/single-quality-framework-draft-
standards/. The paper was released on 9 March and submissions were due by 21 April 2017.
140
Department of Health, 2017, Single Quality Framework: draft Aged Care Quality Standards consultation
paper, p. 5.
141
Report on the outcome of consultations on the Single Aged Care Quality Framework, July 2017, p. 5,
https://agedcare.health.gov.au/report-on-the-outcome-of-consultations-on-the-single-aged-care-quality-
framework
26
Community engagement to promote quality
This chapter has noted ways consumers of aged care and other members of the community are able
to engage in the aged care system to improve its quality, and what is being done by the government
to expand that engagement.
There are committees and services that contribute to the overall improvement in the quality of aged
care, whether through assisting care recipients in navigating the system and making complaints, or
providing feedback to the regulatory agencies.
Aged care advocacy services
Funded by the Commonwealth, aged care advocacy services are provided free through the Older
Persons Advocacy Network (OPAN), a national network of nine state and territory organisations that
deliver advocacy, information and education services to older Australians.142
Aged Care Quality Advisory Council
Set up under the Aged Care Quality Agency Act 2013 to advise the Quality Agency in relation to its
functions, and to advise the Minister on the performance of the Quality Agency, the council consists
of between 7 and 11 members. Members represent providers, clinicians and consumers. They must
have experience in, and knowledge of, either evaluating quality management systems, or aged care
provision, consumer issues, geriatrics, gerontology, aged care nursing, psychiatry, adult education,
public administration, law, health consumer issues or other appropriate expertise.
Aged Care Sector Committee
The Aged Care Sector Committee brings together key stakeholders in the aged care sector, including
providers, peak bodies such as Alzheimer's Australia, National Seniors Australia and the National
Aged Care Alliance, plus consumers, workforce representatives and regulators. It has a key role in
advising the Minister for Health on the government's reform process and its future direction. The
committee was tasked by the government to develop the Aged Care Roadmap. The Roadmap
represents the committee's views on the short-, medium- and long-term actions required to
transform the current aged care system into a sustainable, consumer-driven and market-based
system. The Roadmap was delivered to the Minister for Health and Aged Care in April 2016. The
government has shown support for the Roadmap and will use it as a guide for future reforms.143
Aged Care Complaints Commissioner Consultative Committee
The Aged Care Complaints Commissioner established the Aged Care Complaints Commissioner
Consultative Committee to support the Commissioner's education and complaints functions. The
committee gives advice, feedback and ideas, and includes representatives of at least three of the
142
Complaints Commissioner, Submission to the Senate Community Affairs References Committee, p. 4,
footnote 15.
143
Department of Health, Aged Care Sector Committee, https://agedcare.health.gov.au/aged-care-
reform/aged-care-sector-committee
27
special needs groups identified in the Aged Care Act 1997, as well as broader service provider and
service user representatives.144
Conclusion
The regulatory system governing aged care in Australia is a complex arrangement of responsibilities
across several agencies. There are structures to support coordination and cooperation among some
of the main players, though not all. The system gives the impression of being the result of multiple
incremental changes, rather than system-based design to achieve the most efficient and effective
regulation of quality in aged care. Chapter three examines how the system performed at Oakden,
and chapter four reviews the performance of Australia's aged care regulation more broadly.
144
Aged Care Complaints Commissioner Consultative Committee,
https://www.agedcarecomplaints.gov.au/aged-care-complaints-commissioner-consultative-committee. The
Committee met for the first time on 10 May 2016.
28
Chapter 3: What went wrong at Oakden?
Introduction
This inquiry is not a review of the care provided at the Makk and McLeay wards, the two wards at
Oakden Older Persons Mental Health Service (Oakden).145
Our examination of what went wrong at Oakden is about why, prior to its sanction on 17 March
2017, Commonwealth aged care regulatory processes did not adequately identify the systemic and
longstanding failures of care at the Makk and McLeay wards documented in South Australia's Chief
Psychiatrist's report of April 2017. That report was prepared by Dr Aaron Groves, along with three
colleagues, Professor Nicholas Procter of the University of South Australia, Dr Duncan McKellar from
Central Adelaide Local Health Network, and Ms Del Thomson, the Clinical Risk Manager for the Office
of the Chief Psychiatrist. It is referred to here as the Groves report.
We have sought to understand why significant concerns about care at Oakden were not adequately
reflected in the Commonwealth's regulatory processes, so that lessons can be learned and processes
improved where necessary.
There are two dimensions to analysis of what happened at Oakden. The first is understanding what
occurred at this facility and why. The second is to ask whether Oakden was an isolated instance. This
is an important question, because the breadth of any proposed reforms turns on whether Oakden is
an outlier, or instead represents a wider pattern of concern.
Oakden--a story in three parts
The events at Oakden, culminating in the closure of the Makk and McLeay wards on 14 June 2017,
can be understood in three phases. The first phase covers the period up to March 2010, during which
Oakden received numerous short accreditation periods and was subject to intense scrutiny because
of failures of care. The second phase begins in March 2010, when Oakden was accredited for three
years--the first time this length of accreditation had been granted to Oakden--and extended to the
end of 2016. The third phase begins with the establishment of the inquiry by the Chief Psychiatrist in
December 2016 and a media report about an alleged failure of care at Oakden, published on
17 January 2017, culminating in the South Australian Government's decision to close the facility.
Oakden until 2010: close supervision
Prior to 1998, the facilities at Oakden were state-funded psychogeriatric facilities, administered as a
health care service. In that year, however, accreditation as nursing home beds (as they were then
known) was sought for two of the four 'wards' at the facility, Makk and McLeay. As the Groves report
notes:
145
The Oakden facility includes a third ward, Clements House. Clements House is not an aged care facility, and
not covered by this Review. In this report, the term 'Oakden' refers only to the Makk and McLeay wards.
29
This was a key turning point. From that time, what had been an entirely State funded
Specialist [Older Persons Mental Health Service] was now an entirely Commonwealth funded
service, for these two units that were attempting to provide the same range of specialist
services with a lower level of overall funding. It is unknown what happened to the State
recurrent funding of Oakden from that time onward.146
From this point, Oakden was operating in an unusual regulatory environment, because of dual
involvement by both state health and Commonwealth aged care regulators. As a specialist facility,
Oakden was caring for older people with particularly complex mental health needs. Good practice
would dictate that it met both aged care and health care standards. However, it seems that this was
not the case.
It appears that right from the beginning of Oakden's time as a Commonwealth-subsidised facility,
there were issues with the care it was providing to consumers. For example, an external review of
care was initiated by the state health care service in 1999, in response to concerns about the
service.147 Between 2001 and 2007, Oakden was mostly only accredited148 for one-year periods,
which again suggests there were quality issues,149 since the large majority of facilities nationwide
received three-year accreditation.
Oakden, operated by Central North Adelaide Health Service, was experiencing significant problems
meeting the Accreditation Standards during 2007, based on a site audit conducted by the Aged Care
Standards and Accreditation Agency (the Accreditation Agency)150 in February 2007. That audit,
though it resulted in a recommendation that the facility be re-accredited, also identified non-
compliance with some standards, the last of which was not resolved until September that year. The
Accreditation Agency gave Oakden one year of accreditation to May 2008.
Despite remedying the non-compliance, the Commonwealth Department of Health received
information that further issues existed at Oakden, triggering further investigation by the
Department's complaints investigation team of the care received by residents at the facility and on 6
December 2007, the Department made a Type 4 referral (the most serious) to the Accreditation
Agency. In response, an Accreditation Agency assessment team conducted a review audit of the site
for nine days in that December.
The Accreditation Agency's review audit found that Oakden complied with only 18 of 44 expected
outcomes under the Accreditation Standards, and that there was "serious risk to residents in relation
to the living environment and behavioural management".151 This information was provided to the
Department, which determined that there was an immediate and severe risk to care recipients. On
12 December 2007, the Department placed sanctions on the facility, which included a requirement
146
Groves A., et al., 2017, The Oakden report, South Australian Department for Health and Ageing, p. 24.
147
Groves A., et al., 2017, The Oakden report, South Australian Department for Health and Ageing, p. 24.
148
Under Commonwealth aged care standards.
149
Groves A., et al., 2017, The Oakden report, South Australian Department for Health and Ageing, p. 25.
150
This would be superseded in 2014 by the Australian Aged Care Quality Agency. The term "Accreditation
Agency" is used in this chapter to refer to both.
151
Nancy Morelli, State Manager, Accreditation Agency, 'Decision Not to Revoke Accreditation Makk & McLeay
Nursing Home', undated, following the review audit of 1 to 5 March 2008.
30
to appoint nurse advisers to assist the provider with delivery of care and services. Two nurse advisers
commenced at Oakden on 21 December 2007.
From 15 December 2007, an assessment team from the Accreditation Agency was on site nearly
every day until the start of January to supervise the addressing of the most urgent issues. By
4 January 2008, the Accreditation Agency could advise the Department that the two areas of serious
risk that had prompted the Type 4 referral had both been rectified.
The Accreditation Agency had to determine whether to continue Oakden's accreditation. The facility
clearly had serious problems, because the assessment team that had conducted the evaluation
recommended that the facility not be accredited. The Accreditation Agency weighed its own team's
recommendation against other factors, including actions the provider had undertaken and the
provider's response to the assessment report. On 7 January 2008, setting aside the team's
recommendation, the Agency described its decision:
The assessment team also recommended that the Agency revoke the home's accreditation.
In making its decision, the Agency considered the home's level of noncompliance, compliance
history and the home's remaining period of accreditation. While the home still has non-
compliance, the Agency is satisfied that the home is continuing to make improvements to
ensure the health, safety and well-being of residents.152
The Accreditation Agency placed the facility on a timetable for improvement, requiring Oakden to
rectify non-compliance by 28 February 2008. This involved making at least 139 improvements across
the 26 outcomes the facility did not meet.
When the Agency's timetable for improvement was put in place, Oakden's accreditation had four
months to run. However, the situation appeared to deteriorate, when on 16 January 2008 the nurse
advisers resigned over concerns about the willingness of the facility and its staff to make the changes
necessary to meet the Accreditation Standards. The Accreditation Agency's assessment team's
recommendation, the Department's imposition of sanctions, and the resignation of the first nurse
advisers, may all have contributed to the decision of the site's operator (the South Australian
Government) to initiate an external review.153
The Accreditation Agency continued to make regular contact visits while the provider was still non-
compliant with the Standards and under departmental sanctions. On 26-28 February, the Agency
also conducted a three-day audit.
However, just as the audit was being completed, there was a significant incident at Oakden. On
28 February 2008, a resident at Oakden died following an incident involving another resident, who
was charged with murder but died before trial. The incident was reported immediately to the police
and the Department, as required under legislation. Within 24 hours, the Department had issued a
second Type 4 referral - the most serious - to the Accreditation Agency requiring a review audit.
152
Accreditation Agency, attachment to letter to Mr Sexton, Acting General Manager, Central Northern
Adelaide Health Service, 7 January 2008, 'Decision not to Revoke Accreditation Makk & McLeay Nursing
Home'.
153
Stafrace, S., Lilly, A., 1 April 2008, Final report on the review of the Makk & McLeay nursing home.
31
Within a further 24 hours, the Agency was on site, conducting a full-scale audit, which ran from 1 to
5 March 2008.
During the review audit, the Accreditation Agency found extensive non-compliance with the
Accreditation Standards, and advised the provider and the Department that its timetable for
improvement had not been met.
A letter from the Agency to Oakden on 13 March 2008 suggests that a further timetable for
improvement may have been put in place, and (though the documentation is not completely clear)
the accreditation period of the facility may have been shortened, sending a clear signal that unless
there was improvement, Oakden was on track to lose accreditation:
The timetable in which the improvements were required to be made has now ended. I am not
satisfied that the level of care provided by the home complies with the Accreditation
Standards.154
Despite this apparently serious failure to improve, the letter continued:
We will continue to conduct support contacts to monitor your compliance with the
Accreditation Standards.
The home must take immediate action to rectify the non-compliance with the Accreditation
Standards. If non-compliance continues the Agency may decide to conduct a review audit,
following which your accreditation period could be shortened or your accreditation revoked.
However, later documentation (the site audit accreditation decision of 9 September 2008) states in
part: "In March 2008, the home's accreditation was revoked, and following a reconsideration of that
decision, in April 2008, the home was granted a 6 month period of accreditation."155
Based on information provided by the Accreditation Agency following its March audit, on 10 April
2008 the Department issued a notice of non-compliance to Central North Adelaide Health Service,
which was the official approved provider.
While the situation at Oakden remained unsatisfactory, the Accreditation Agency found that
compliance with the expected outcomes under the standards was improving, with compliance having
risen to 30 of 44 outcomes. Perhaps of more significance was a change in the assessment team's
advice regarding accreditation, contained in its report on the March audit:
The assessment team recommends that The Aged Care Standards and Accreditation
Agency Ltd not revoke accreditation of Makk & McLeay Nursing Home. The assessment team
recommends that the period of accreditation not be varied. The assessment team
154
Virginia Matthews, Acting Assessment Manager, Accreditation Agency, letter to Mr Sexton, Acting General
Manager, Central Northern Adelaide Health Service, 13 March 2008.
155
Ann Wunsch, State Manager, Accreditation Agency, 'Site Audit', Makk & McLeay Nursing Home RACS ID:
6010, 9 September 2008.
32
recommends that there should be six support contacts during the period of accreditation and
the first should be within one week.156
The Accreditation Agency, in its "Decision not to revoke accreditation Makk & McLeay Nursing
Home" (undated, but following the review audit of 1 to 5 March 2008), stated:
The home's period of accreditation remains unchanged and will expire on 18 October
2008...The Agency has found that the home complies with 30 of the 44 expected outcomes of
the Accreditation Standards...Extensive non-compliance was identified at the review audit.
However, following the audit, ACH Group, which has extensive experience in aged care, has
entered into a partnership with the approved provider in relation to the management of the
home. In addition, the home is being assisted through the appointment of a nurse adviser.
ACH is implementing new management systems to improve care for residents and to address
the non-compliance identified at the review audit. The remaining short period of
accreditation means the home will be subject to another full audit which will assess the
sustainability of the improvements being made. The approved provider has been advised of
matters in respect of which improvements would be necessary to recommend continuation of
the home's accreditation. The Agency will undertake support contacts to monitor progress
with these improvements and compliance with the Accreditation Standards.157
During the ensuing five months, the support contacts were conducted. A report by the assessment
manager after a contact on 7 July 2008 indicated that it had "provided evidence that the home has
made improvements and I am satisfied the home has rectified the non-compliance".158
The next Accreditation Agency site audit was over three days in August 2008, and found compliance
with all 44 outcomes under the Standards. The assessment team recommended a year of
accreditation, but on 9 September 2008, the Agency decided to accredit for a shorter period, from 19
October 2008 to 30 April 2009. In February 2009, the re-accreditation audit, over a three-day period,
again found compliance with all 44 expected outcomes. The assessment team recommended two
years' accreditation, but on 30 March the Agency decided to keep Makk and McLeay wards under
closer scrutiny, approving only one year, until April 2010.
The decision to keep Oakden under relatively close scrutiny seems consistent with other evidence
that it was not yet running completely smoothly. During 2009, there were three separate referrals of
matters from the Department's Complaints Investigation Scheme to the Accreditation Agency, and
five complaints-based unannounced visits to Oakden. Compared to the oversight of Oakden after
2010, this still represented a relatively high degree of scrutiny of the service.
156
Accreditation Agency, Review audit report - not to revoke/to vary, 'the report of a review audit of Makk &
McLeay Nursing Home 6010S, 200 Fosters Road, Oakden SA 5086 from 1 March 2008 to 5 March 2008
submitted to The Aged Care Standards and Accreditation Agency Ltd on 11 March 2008'.
157
Nancy Morelli, State Manager, Accreditation Agency, 'Decision not to revoke accreditation Makk & McLeay
Nursing Home', undated, following the review audit of 1 to 5 March 2008.
158
Virginia Matthews, Assessment Manager, Accreditation Agency, 'Support contact advice', Makk & McLeay
Nursing Home RACS ID: 6010, undated (date of contact visit 7 July 2008).
33
Oakden 2010 to 2017: set and forget?
The approach of the Accreditation Agency appears to have changed in 2010. In February 2010,
following a two-day accreditation audit in the lead-up to expiry of accreditation in April, and another
assessment of compliance with all 44 outcomes under the standards, the assessment team made the
same recommendation as had been made one year earlier, which was for a two-year accreditation.
However, the Agency's decision was different to 2009. Instead of keeping Oakden under relatively
intense scrutiny, it awarded accreditation for three years, to April 2013.
Engagement with Oakden from the start of 2010 rapidly reduced to a bare minimum. In 2010, the
Department received two compulsory reports of incidents, but there was only a single complaint-
based visit to Oakden, and just two support contacts by the Agency after accreditation.
In 2011, there was even less engagement. Although the Department received two more compulsory
reports of incidents, these triggered no visits, while the Accreditation Agency made two contact
visits. There were three Agency visits in 2012, and no other contact. Throughout this period, all
Agency visits reported compliance with all assessed expected outcomes under the Standards.
Despite finding compliance with the assessed outcomes, substantive issues were regularly identified
in the support contact visit reports. For example:
● In January 2011, medication issues were noted, as were several issues around care and
staffing, with the contact team's report noting that "Information from observations on-site
and residents / representatives' interviews indicated possible issues with staffing
management."159
● In July 2011, while full compliance was found, the examples of continuous improvement
recorded in the report were mostly in response to incidents, some of them potentially
significant, that had required rectification.
● In January 2012, medication issues were again noted in the context of care problems that
were observed.
● In July 2013, an issue with pain management was noted.
● In September 2014, pain management was scrutinised more closely and there were
numerous issues noted. This appeared to have been resolved by the January 2015 visit, but
its appearance over consecutive contact visits could have raised a question about the
effectiveness of management or staffing at the facility.
There had been a change in the way the audit process worked by the time of the next accreditation
audit in February 2013. For the first time, the report that the assessment team prepared for the
Accreditation Agency did not contain an explicit recommendation about whether or not to re-
accredit. This reflected a change in administrative processes within the Agency. Therefore, it is not
possible to discern whether the assessment team held a different view from the Agency's final
accreditation decision.
The assessment team undertook a two-day site audit at Oakden on 11 and 12 February 2013. It
reported compliance with all 44 expected outcomes. Three further years of accreditation were given
159
Accreditation Agency, 'Support contact report', undated, support contact 18 January 2011.
34
by the Agency. The only contact for the rest of the year was one unannounced visit, representing the
minimum possible contact under government policy. In 2014, there was again almost no contact--
the minimum single unannounced visit from the Agency,160 and one visit by the Complaints
Investigation Scheme. 2015 was the same.
Finally, in February 2016, the Quality Agency (as it had now become, following the Living Longer
Living Better changes) conducted another two-day accreditation audit, and found compliance with all
expected outcomes. Oakden was re-accredited for three years. There had now been six years of
minimal oversight.
2017: scrutiny reveals failure
In early 2016, Bob Spriggs, a resident at Oakden, was given ten times the amount of a prescribed
medication and was left with unexplained bruises that resulted in his hospitalisation. His family was
very concerned about the care he received at Oakden. While not naming Mr Spriggs in his report,
this is how Dr Groves recounts subsequent events:
He did not return to Oakden.
In June 2016, the family of this consumer made their concerns about his care known to the
Principal Community Visitor and then to the [Northern Adelaide Local Health Network]
NALHN Mental Health Service.
Subsequently the family's concerns about the level of his clinical care were raised with Ms
Jackie Hanson, the CEO of NALHN, who then met with them in December 2016 to hear their
concerns and to respond.161
These events were the trigger to scrutiny that would lead ultimately to national news stories and a
decision by the South Australian Government to close Oakden. In his report, Dr Groves began by
explaining:
On 20 December 2016, the Chief Executive Officer (CEO) of the Northern Adelaide Local
Health Network (NALHN), Ms Jackie Hanson contacted the Chief Psychiatrist raising concerns
about the level of clinical care provided at the Oakden Older Persons Mental Health Service
(OPMHS). Ms Hanson requested the Chief Psychiatrist undertake an external independent
review of the Oakden Facility as a matter of urgency with the intention of providing a report
in April 2017.162
It appears that, despite these serious concerns, and the formal commissioning of a review of a facility
that included Commonwealth-accredited and -funded aged care, Commonwealth regulatory
agencies were unaware of this activity. On 17 January 2017, ABC Adelaide carried a news story about
the care of Bob Spriggs. This was the first time that Commonwealth aged care regulators became
aware of the concerns of Mr Spriggs' family and, through them, of the possibility that there would
again be questions about the quality of care at Oakden.
160
From 2014, the regulatory responsibilities of the Accreditation Agency were transferred to the new
Australian Aged Care Quality Agency but the term Accreditation Agency is used throughout this chapter.
161
Groves A., et al., 2017, The Oakden report, South Australian Department for Health and Ageing, p. 2.
162
Groves A., et al., 2017, The Oakden report, South Australian Department for Health and Ageing, p. 1.
35
The incident involving Mr Spriggs, or the issues that might have contributed to it, were not identified
in either the Quality Agency's re-accreditation audit in February 2016, or the unannounced
assessment contact visit in November 2016, in which the facility had met all assessed expected
outcomes.
On 28 February 2017, the Department briefed the Commonwealth Minister for Health and the
Quality Agency conducted an assessment contact visit on the same day. It is not clear why this
occurred a month and a half from the date of the media report. By this stage, Dr Groves'
investigation was well underway.
The November 2016 assessment contact visit had been undertaken by a single accreditation team
member; the February 2017 visit was undertaken by two assessors. Whereas the November 2016
contact visit report indicated no issues, the February 2017 contact report, which included
examination of incident reports and medication charts, raised several issues.
The February 2017 assessment contact report, which outlined the extent of issues at Oakden, was
provided to the Department. The report set out a range of problems identified through examination
of incidents, including those involving Mr Spriggs. The report also indicated the extent of staff
performance issues at the facility and that the Australian Health Practitioner Regulation Agency
(AHPRA) was now involved:
o The clinical staff (two registered nurses) involved in the medication error have been stood
down and reported to AHPRA and no longer work at the facility.
o The Medical officer has also been stood down pending an investigation.
o A clinical director was relinquished from duties late last year [2016] relating to concerns
regarding governance and responsibilities. This is now being overseen by the current Nursing
Director and acting Clinical Service Coordinator (CSC).163
The February 2017 assessment contact visit found other issues, such as internal audits not
conducted, and staff appraisals and education not yet completed.
The issues identified by the Quality Agency instigated an extensive review audit in March 2017. As
noted in chapter two of this report, review audits are relatively rare, and indicative of potentially
serious issues at a facility that require attention. The review audit was conducted by three Agency
assessors and spanned nearly a fortnight (from 6 to 17 March). Towards the end of the audit, the
Quality Agency released information to the Department that noted significant quality-of-care issues
at Oakden. These demonstrated starkly that residents were not being provided with adequate care.
From this point, the process moved rapidly, with the Department determining an immediate and
severe risk to residents, placing sanctions on the facility, while the Agency conducted at least 17
assessment contacts and visits to Oakden over the next two months. On 10 April, Dr Groves and his
colleagues handed their report on Oakden to the South Australian Minister for Mental Health. It was
a sharply critical and comprehensive indictment of the Makk and McLeay wards. The South
163
Australian Aged Care Quality Agency, 'Assessment contact report', undated, assessment contact
28 February 2017.
36
Australian Government announced it would accept all the report's recommendations, and that the
facility would be closed. According to the South Australian Government:
At 8 August 2017, a total of 12 staff were suspended pending further investigation, three
staff members' employment had been terminated and two had resigned. Nine matters have
been referred to South Australia Police and 34 staff have been referred to Australian Health
Practitioner Regulation Agency (AHPRA).164
The Makk and McLeay wards ceased operation on 14 June 2017.
It emerged during this Review that there appeared to be some ambiguity about the regulatory
oversight of Oakden. The facility is part of the Northern Adelaide Local Health Network, which is part
of the South Australian Health portfolio. It is also a separately incorporated entity. Northern Adelaide
Local Health Network's service level agreement with the South Australian Department for Health and
Ageing states, in part, that the Local Health Network's CEO's responsibilities include:
Implementing the National Safety and Quality Health Service (NSQHS) Standards and
ensuring that all hospitals are accredited under the Australian Health Service Safety and
Quality Accreditation (AHSSQA) Scheme.165
However, it appears that Makk and McLeay wards were not assessed against the NSQHS standards in
2016 (though Clements ward was). The Australian Commission on Safety and Quality in Health Care
advised this Review:
That all health services where patients have a severe form of dementia should be cared for in
health services where the NSQHS Standards are in place and that these health services
should be routinely assessed for accreditation by approved accrediting agencies along with
other mental health services of the Local Health Network.166
Understanding Oakden
The final paragraph of the Groves report states:
At the very heart of the intent of this report's recommendations is that Oakden must close
and that it must be replaced by a range of contemporary services that aspire to excellence in
care to the most vulnerable people in South Australia. But more fundamental should be the
lesson that the failings of Oakden should never happen again.167
164
Government of South Australia, Submission to the Senate Community Affairs References Committee inquiry
into the effectiveness of the Aged Care Quality Assessment and accreditation framework for protecting
residents from abuse and poor practices, and ensuring proper clinical and medical care standards are
maintained and practised, p. 4.
165
Service Level Agreement for the period of: 1 July 2016 - 30 June 2017. Agreement between: Chief
Executive, Department for Health and Ageing and Chief Executive Officer, Northern Adelaide Local Health
Network, p. 10.
166
Letter from ACSQHC to Reviewers, 21 September 2017.
167
Groves A., et al., 2017, The Oakden report, South Australian Department for Health and Ageing, p. 115.
37
For the Commonwealth's regulatory system, this requires consideration of two questions: what can
the government do to foster excellence in care for vulnerable people; and what needs to change to
avoid failures such as those that occurred at Oakden? The remainder of this chapter focuses on
learning from the Oakden experience to avoid repeats of another such disturbing case. We focus on
these questions:
● What circumstances were unique to Oakden or to a small number of cases, and what might
be a system-wide problem?
● Is accreditation effective?
● Is accreditation structured according to risk?
● Are the necessary relationships and communication in place?
Was Oakden unique?
A view sometimes expressed to this Review was that the Oakden case can be considered a rare, if not
unique, situation. The two main lines of argument put forward that Oakden should be considered as
exceptional are that:
● Oakden's structure was atypically complex, as were the needs of its consumers, and
therefore Oakden is of limited relevance to the rest of the aged care system.
● Evidence suggests that the residential aged care system as a whole is one of relatively high-
quality care.
There is truth in both those propositions, but both risk understating the significance of the systemic
issues that Oakden demonstrates. We set out each of these cases and elaborate on the relevant
issues below.
The complexity of Oakden
The Makk and McLeay wards at Oakden were a rare type of facility: one that was simultaneously a
state health care facility regulated as such, and an aged care facility accredited under the
Commonwealth's Aged Care Act 1997. It was the only facility of its kind in South Australia and one of
only a handful among the over 2,500 residential facilities across the country.
As the Groves report notes:
The services provided at Oakden comprise the only Specialist Mental Health Service for Older
People in South Australia that are provided as a State-wide service on behalf of all [Local
Health Networks].168
One of the purposes of specialised facilities is to provide care for people with the most extreme
behavioural symptoms of dementia. They represent a very small proportion of people with
dementia. For example, the prevailing model estimates there would be only 25 to 35 people in the
whole of South Australia requiring the most intensive type of care.169
168
Groves A., et al., 2017, The Oakden report, South Australian Department for Health and Ageing, p. 14.
169
Groves A., et al., 2017, The Oakden report, South Australian Department for Health and Ageing, p. 17.
38
Several stakeholders, in their submissions to this Review, drew attention to the unusual governance
and funding arrangements at Oakden. Aged and Community Services Australia, for example, said
that:
the specific and unique situation with Oakden (i.e. state government ownership (and
therefore atypical expectations around accountability); joint funding and specialist nature)
may have been an important factor.170
The Aged Care Guild argued:
the Makk and McLeay wards were established as a specialist mental health facility and so
are not reflective of the care provided by the wider sector. The residents, staffing,
relationship with the South Australian government and specific care provided are
fundamentally different to the wider sector...It might be that the aged care regulatory
system is not geared for facilities such as Oakden, which was a mental health facility and as
such atypical in [the] sector.171
HammondCare wrote:
The fact that Oakden was subject to both state and Commonwealth regulatory systems
suggests it was more likely to be ill-suited to both. By properly aligning Commonwealth
regulatory processes with services providing Commonwealth programs, we believe many of
the issues that occurred at Oakden could be avoided.172
All of these things are true, and they mean that Oakden was in a different situation than many aged
care services. However, there are two main reasons why the distinctive nature of Oakden should not
be overstated.
First, as the analysis in the Groves report and in this chapter has shown, there were failures of care
for consumers at Oakden that lay entirely within the scope of the Commonwealth's regulatory
system, and were not caused by the extra layer of state health system regulation and control. They
were issues that any service could experience. The Groves report did identify some issues that
related to the regulatory circumstances at Oakden, such as funding adequacy. However, most of the
issues were attributable to failures that any service could be vulnerable to.
Second, while Oakden cared for people with particularly complex mental health needs, there are
many consumers with complex needs in the aged care system. We know from the Aged Care Funding
Instrument, for example, that around half of residential care consumers have symptoms of mental
illness.173 This group overlaps with the approximately half who have dementia.174 We know that
frailty is increasing,175 and that the number of people in care with dementia (and therefore with
170
Aged and Community Services Australia submission (ID#603497857) p. 5.
171
Aged Care Guild submission (ID#1032742486).
172
HammondCare submission (ID#253951248).
173
Australian Institute of Health and Welfare, People's care needs in aged care, https://www.gen-
agedcaredata.gov.au/Topics/Care-needs-in-aged-care
174
Department of Health, 2015-16 Report on the Operation of the Aged Care Act 1997, p. 45.
175
E.g. The Hon Sussan Ley MP and The Hon Ken Wyatt MP, 'Stronger Compliance to Protect Integrity of Aged
Care Sector', media release, 16 December 2015.
39
severe dementia) is increasing.176 Oakden is not unique, because the characteristics and needs of its
residents were not unique.
The regulatory system must be designed to respond to the profile of consumers in a service. Had that
been the case ten years ago, Oakden--and other facilities with more vulnerable consumers--could
have been supported and monitored more closely.
The quality of care across the aged care system
The second argument that Oakden is an unusual case, is that care across the aged care system is
generally regarded as of good quality. COTA Australia stated:
COTA Australia is pleased to note however that in its experience, cases such as Oakden are
not a common occurrence amongst the 2,681 residential aged care facilities in Australia.
Indeed, they are isolated and rare.177
Provider representatives took a similar view. The Aged Care Guild submitted:
Broadly, the Guild considers the individual regulatory activities and processes of government
agencies to be robust and meet their intended purpose. The Guild believes the regulatory
framework, when applied appropriately, provides a very comprehensive protection and
assurance that residents in aged care facilities are receiving a high level of care.178
The Quality Agency reported that the accreditation system has delivered increases in compliance
with standards. In 2000, only 64 per cent of agencies met all 44 standards. By 2006, shortly before
the main problems with Oakden were identified, that had risen to 92 per cent. By 2015 it was
97.8 per cent.179
However, we know from Dr Groves' investigations at Oakden that the quality of care there was not
accurately represented in the Agency's evaluations. If this is true at Oakden, it could well be the case
elsewhere, a possibility raised with this Review by stakeholders. Accordingly, it is not possible to rely
solely on the level of reported compliance with the Accreditation Standards as a robust indicator of
quality in the residential care system.
But there is other evidence to indicate that the care in Australia's system is good overall. Complaints
data give some indication that the serious issues at Oakden are unusual, without being unique. The
issues at Oakden were of a kind that, had they been brought to the attention of the Aged Care
Complaints Commissioner, would have required referral to one of the regulatory agencies.
In 2016-17, the Complaints Commissioner received 3,656 complaints about residential care and
made 501 referrals of matters to either the Department or the Quality Agency.180 Put in the
176
Brown, L., Hansnata, E., and Anh La, H., February 2017, Economic cost of dementia in Australia 2016-2056,
Alzheimer's Australia, p. ix.
177
COTA Australia submission (ID#743548634).
178
Aged Care Guild submission (ID#1032742486).
179
AACQA, Annual report 2015-16, p. 7.
180
Complaints Commissioner, Annual report 2016-17, pp. 18, 24. Most of the referrals related to residential
care - Complaints Commissioner, personal communication.
40
perspective of the care system, complaints raising serious issues can be seen to represent a small
proportion of aged care, as Figure 2 shows.
Figure 2. Aged care complaints181
While more serious issues are uncommon, there are other patterns in the complaints data that
indicate that Oakden is not dramatically different to the sector more generally. In particular, the large
majority of complaints handled by the Complaints Commissioner relate to residential aged care
rather than home care, and the most common complaints relate to areas of aged care similar to
those that were problematic in the Oakden case. Regarding the 3,656 complaints received about
residential care in 2016-17, the Commissioner's annual report states:
The most common complaints about residential care were about medication administration
and management (559), falls prevention and post fall management (382), and personal and
oral hygiene (365).182
This list includes many of the issues identified at Oakden by Groves, and by families and professionals
who raised issues about care.
Other sources of data that might give more insight to Australia's quality of care were not available to
this Review. Unlike some other countries, Australia does not have a mature quality indicator system.
We also lack good-quality consumer experience information. We return to these issues in our
recommendations.
181
Sources: Complaints Commissioner, Annual report 2016-17; Aged Care Financing Authority, Annual report
2017.
182
Complaints Commissioner, Annual report 2016-17, p. 19.
41
Overall, the limited data available suggest that residential care is, in general, of a good standard, but
that the circumstances at Oakden should not be considered unique.
In summary, it appears 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.
Accordingly, Oakden should not be treated as a unique case, but as a type of service that operated
towards one end of the spectrum of complexity of care, from which the entire aged care system can
learn, and with reform implications for the system as a whole.
Was accreditation effective?
The Oakden case raises serious questions about the accreditation system. The assessment of Oakden
by Dr Groves and his colleagues found information and practices not at all consistent with the
standards of care that accreditation is designed to foster. The Groves report covers these issues in
more detail. In this section, we consider what that report indicates about compliance with the
standards that the Agency is responsible for monitoring. As outlined in chapter two, there are
currently 44 expected outcomes under four standards against which accreditation occurs. Box 1
illustrates examples of findings and issues discussed by Dr Groves against some of the outcomes in
the Commonwealth's accreditation framework.
Box 1. Examples of accreditation outcomes and failures at Oakden
Accreditation outcome What Dr Groves observed and found
1.1 The organisation actively Dr Groves found at Oakden a culture that was hostile to learning,
pursues continuous improvement or adoption of contemporary clinical practice. For
improvement. example, in relation to the use of pelvic restraints, he found: "A number
of previous attempts to have Oakden consider this evidence was met
with rejection of such ideas and re-iteration that their approach was
appropriate. This is a feature of organisations that are closed to new
evidence, and cannot incorporate new approaches when they are
challenged about the prevailing norms in their practice." (p. 84)
1.2 Management and staff Dr Groves found training at Oakden was inadequate and poorly focused.
have appropriate knowledge His findings included: "Staff were not provided with adequate
and skills to perform their opportunity to meet their mandatory training requirements, let alone
roles effectively. access desirable training to assist them in caring for and improving
services for the consumer cohort. While just over 50% of staff had
completed a Performance Review and Development, what may have
been included as 'Development Activities' is not clear." (p. 65)
1.5 The organisation has Dr Groves documented numerous leadership issues before concluding
documented the residential simply by quoting the saying: "'the fish rots from the head'. This is an apt
care service's vision, values, view of the collective organisational leadership as it related to Oakden."
philosophy, objectives and (p. 75)
commitment to quality
throughout the service.
42
Accreditation outcome What Dr Groves observed and found
2.2 The organisation's Dr Groves' report devoted a chapter to the use of seclusion and
management has systems in restraint, identifying shocking practices and a lack of leadership. Among
place to identify and ensure his conclusions was: "There has been ongoing, repeated use of
compliance with all relevant restrictive practices at Oakden that has contravened legislation, national
legislation, regulatory standards, state policy and local procedures and likely implemented for
requirements, professional staff convenience and or used as punishment." (p. 113)
standards, and guidelines,
about health and personal
care.
2.4 Care recipients receive Dr Groves' report described many care issues, including detail of an
appropriate clinical care. example of poor care, that his report stated directly was not consistent
with accreditation:
"The Review found multiple clinical entries that referred to various terms
such as 'tends to lie on the floor', 'puts themselves on the floor' and
'floor time'. The Review could not understand what this meant. On direct
questioning, the Review was informed of a very disturbing account of
what constituted 'Floor time'. It occurred when during staff interactions
with certain consumers, the staff would leave the consumer on the floor
in considerable distress if they had formed a view that intervening to
assist the person was not needed immediately, for whatever reason.
This is among the most abhorrent approaches to providing care to
severely disturbed consumers that any of the Review had encountered in
well over 110 years of collective practice. It simply lacks any humanity.
This was an example of the type of issue that no accrediting body would
ever endorse, if it was aware of its occurrence." (p. 78)
2.7 Care recipients' Dr Groves observed many issues around medication. For example: "The
medication is managed safely Review also examined files in which the combination of certain
and correctly. medications, doses and even the clinical indication for the use of the
medication was questionable. These issues would be addressed by the
inclusion of Clinical Pharmacy services within the Clinical model for the
services at Oakden." (p. 86)
2.13 The needs of care Dr Groves reported "a widespread view, held by the staff, which the
recipients with challenging Review heard repeatedly, that Oakden (in particular Makk and McLeay
behaviours are managed Nursing Home), is a place for the rest of the consumer's life. This
effectively. resulted in an attitude among staff that there was less effort and
emphasis that needed to be placed on managing the consumer's
challenging behaviours as there was little prospect that any
improvement would help facilitate their discharge." (p. 30)
An effective accreditation process, raising questions about both clinical practice and care for
residents with challenging behaviour, should have identified cases such as that noted above, where a
view was "widespread" and expressed "repeatedly". If the National Safety and Quality Health Service
standards were being implemented at Oakden, they should have caused the Local Health Network
responsible for Oakden to be alert to risks at the facility. It appears, however, that these health
standards were not being applied. Dr Groves' overall view was that there were:
43
unacceptably high levels of challenging behaviour; worrying data on increased use of
restraint, falls and other injuries; medication errors; and as shown elsewhere assaults and
poor clinical outcomes.183
It is not possible to reconcile the findings of Groves' review with the Agency's finding in February
2016 that Oakden met all 44 expected outcomes, and its subsequent assessment contact findings in
November 2016 of full compliance with the outcomes that were assessed.
The Groves report observed that there was a focus on getting through accreditation, and considered
that the organisation had acted specifically to ensure it made it through that process:
The Review found that Oakden has developed a culture of making periodic attempts to meet
different accreditation standards, even if these were barely met, rather than embracing a
culture of continuous quality improvement that is seen as one of the core features of good
clinical governance ... .The Review heard and saw evidence that Oakden became better at
knowing how to produce documents and records that Accrediting Bodies and Surveyors
wanted to and expected to see; and better at ensuring staff knew what to say. However, it
became no better at providing safe or better quality care.184
It is also clear from the analysis of Oakden that the shortcomings at Oakden were not transient, or
isolated. They were persistent and widespread, and should have been detected:
Having made a detailed review of clinical records ... that in some cases go back as far as 2005,
the Review did not find an appreciable difference in the overall level of clinical outcomes over
that entire period. Put another way, the problems in 2016 are seen as far back as one looks.
The Review heard from many sources, including some through the media, that significant
problems were known as far back as 2007 at Oakden when it first failed to meet certain
Commonwealth Standards. At that time, the external review by Stafrace and Lilly pointed to
some of the reasons for these problems. This Review has confirmed that these problems
remain ... [by and large] they have been present throughout the last 10 years.185
We conclude that there are at least three issues with accreditation evidenced by the Oakden case
that need to be addressed.
Some of the expected outcomes under the standards are inappropriate. The current Accreditation
Standards have been in place for a long time and place excessive emphasis on processes, with
insufficient focus on consumers and outcomes. Two examples illustrate this problem: leadership, and
restrictive practices.
In a complex field like aged care, effective leadership cannot possibly be evidenced by documenting a
corporate vision, values, philosophy, objectives and commitment to quality, which is what the
standard currently says. These things need to be evidenced, not merely written down. The standards
need to better reflect what is actually expected of aged care services and their leadership. The
emphasis in the standards on whether things are documented, while acceptable in some situations,
183
Groves A., et al., 2017, The Oakden report, South Australian Department for Health and Ageing, p. 75.
184
Groves A., et al., 2017, The Oakden report, South Australian Department for Health and Ageing, p. 77.
185
Groves A., et al., 2017, The Oakden report, South Australian Department for Health and Ageing, p. 77.
44
can prevent surveyors from considering whether care activities and management systems are good
enough and implemented well enough (rather than just adequately recorded).
Restrictive practices, such as the use of physical restraints or sedation, are a different example. They
are known to risk violating consumers' rights and to deliver poor outcomes in many care settings (not
only aged care), and are the subject of significant human rights concerns and calls for law reform
nationally. They have been, and continue to be, a concern across aged care. Despite this, there is no
regulation that explicitly addresses their use. Regulation should target the things that are important
and the problems that are known. The standards do not do this adequately in the area of restrictive
practices.
Accreditation needs to look deeply into a service, to understand the experience of residents. There
is evidence that some Agency visits did this effectively. Critical examination of medical charts and
resident records by an experienced eye can successfully determine the quality of clinical care being
provided. Observation of care and activities in a service can often determine a great deal about the
service.
The experience of Oakden suggests that there was uneven depth in the examination of services. Too
many Agency visits appeared either not to detect issues within the service, or did not report them in
a way that triggered effective follow-up, or rectification by Oakden.
The most likely causes of this problem are that some surveyors lacked sufficient skills or training,
including in conducting investigations,186 to conduct the necessary analysis, surveyors were not
spending enough time at facilities to look at matters in sufficient detail, or the processes and
materials supporting surveyor work were not fit for purpose.
Services may be preparing for accreditation rather than focusing on continuously providing high-
quality care. Services are becoming adept at providing the Agency with the information it wants to
hear, especially at the time of re-accreditation. This is actively encouraged by the system of planned
re-accreditation visits, where all parties know when they will occur and what will be required. The
heavy reliance on planned re-accreditation has a further negative effect, drawing significant
resources away from the two activities that should be the backbone of Agency quality assurance
activities: education; and thorough, unannounced visits.
The inappropriateness of the accreditation cycle
The problem of services preparing for accreditation highlights concerns around the way in which
accreditation activities are targeted and undertaken.
There is a longstanding expectation and practice in aged care that, unless there is a serious problem
in a facility, it will be accredited for three years, regardless of other risk factors. This is clear from
Quality Agency data about accreditation. In 2016, less than two per cent of facilities were accredited
186
Such as the requirements for investigators set out in the Australian Government Investigations Standards
2011.
45
for any period other than three years.187 This has remained broadly unchanged across the history of
the system; in 2002-03, the former Aged Care Standards and Accreditation Agency was accrediting
fewer than five per cent of facilities for anything other than three years.188
Oakden had a history of non-compliance with the Accreditation Standards, multiple complaints
investigations, and the visiting Accreditation Agency assessment team recommended accreditation
for only two years. Yet, in 2010, Oakden was given three years' accreditation. There were regular
surveyor concerns about medication management and staff culture, identified over successive site
visits, which did not result in further action. These factors suggest that questions need to be asked
not only about examination of this residential aged care facility, but about the accreditation system
itself.
To understand how Oakden compares with the management of quality concerns in aged care
generally, the Review analysed the accreditation pattern for those services that were placed under
sanction by the Department at some point in the last decade. We considered only those cases for
which there were at least two accreditation decisions made post-sanction. There are 57 facilities that
have an accreditation history matching this description. The analysis is limited in that the Review did
not determine the reason for the sanctions. We recognise that in some cases, they may not have
related to quality of care; however, as all these cases have at least one period of accreditation of less
than three years (implying that the Agency had some concerns), it is likely that care quality issues
were relevant, as they were at Oakden.
This analysis has allowed the Review to develop a picture of what accreditation pattern was 'normal'
over time for a facility that may have had a significant compliance issue. This picture can be
compared with the accreditation history at Oakden prior to 2017. Figure 3 shows how long it took to
return to three-year accreditation for all providers who experienced sanctions at some stage in the
last decade.
187
AACQA, Annual report 2015-16, 21 (not counting new facilities and facilities involved in a pilot scheme in
South Australia).
188
Aged Care Standards and Accreditation Agency, Annual report 2002-03.
46
Figure 3. Number of accreditation periods before providers re-attain three-year
accreditation
This analysis shows two key facts. First, it demonstrates the overwhelming logic of the regulatory
system that three-year accreditation is the goal, and that every service is placed on a path to achieve
it. Of the 57 services examined, all but three returned at some point to three-year accreditation, in
some cases despite a long history of issues and more than one application of sanctions by
government. Even among the three that did not return to three-year accreditation in the period
examined, one is too recent to tell whether it might return to three-year accreditation, while the
other two services have closed. The evidence is clear that there is no risk assessment that leads to
facilities being accredited on any different cycle. The target for both provider and regulator appears
not only to be compliance, or quality of care, but a particular accreditation status.
Second, the analysis shows that the accreditation path for Oakden, from its sanctions in 2007
through to 2010 when it first received three-year re-accreditation, is consistent with Oakden's quality
of care deficiencies being considered relatively serious. Put another way, by the standards of
Australia's accreditation system, Oakden was placed under relatively extended scrutiny, with three
short periods of accreditation (meaning accreditation of less than three years), before it was
permitted a three-year term. The data show that well over 80 per cent of facilities that experienced
sanctions returned to three-year accreditation faster than Oakden did.
Our view is that Oakden should never have been on a cycle of three-year accreditations. But the
system treated Oakden consistently with how accreditation is set up. By the standards it appeared to
have set for itself, the Accreditation Agency did not 'fail' by providing three-year accreditation. The
regulatory architecture failed, by signalling to the Agency and the sector that three-year
accreditation was appropriate. It follows that the problem is not the Oakden case. The problem is the
system design.
47
The default three-year accreditation period creates numerous pressures that undermine the goals of
accreditation and the protection of resident safety and quality of care, including:
● Services set a goal of seeking three-year accreditation as a proxy for being quality carers,
instead of focusing on care.
● At the other end of the spectrum, accreditation for less than three years is taken to
represent a penalty and can raise significant questions in the minds of prospective residents
and families, even though it may not indicate any ongoing quality of care issues.
● A standard accreditation period is inconsistent with a risk-based approach to accreditation,
as some services--of which Oakden is a prime example--care for highly vulnerable
consumers with particularly complex needs and will therefore always have higher risks.
Not holding three-year accreditation should not be seen as a criticism of the service. Facilities that
work with older people with severe mental illness, for example, are vital to providing an equitable
and compassionate aged care system. However, they will always be higher-risk services, regardless of
their quality of care. This is not because of their quality as services, but because of the population
they service. The system needs to reflect this.
Three-year accreditation is inefficient and not risk-based. The Oakden case demonstrates that it can
place higher-risk services and vulnerable consumers at unacceptable risk. It should be replaced with
ongoing accreditation and a risk-based system of more rigorous monitoring, under updated
standards. This is discussed further later in this Report.
Relationships and communication
There are several aspects of the Oakden case that illustrate the importance of effective
communication pathways and relationships.
Throughout the regulation of Oakden, it appears that once one Commonwealth agency (whether the
Department, Quality Agency or, since 2016, the Complaints Commissioner) identified a substantive
issue at Oakden, in most cases there would then be a close partnership between them in addressing
issues. The separation of accreditation and compliance activity does, however, require much inter-
agency coordination, and there appears to be overlap in responsibilities.
There are some other aspects of the case that show areas where communication could be improved.
This is most apparent in three areas:
● Resident and family complaints
● Government-to-government relations
● Sharing and interpreting information between regulating agencies.
When concerned about Mr Spriggs' care, his family first approached the Principal Community Visitor,
a statutory officer under South Australia's Mental Health Act 2009, appointed to manage a scheme
for people to regularly visit and inspect treatment centres and meet individuals receiving treatment.
The family then approached the Northern Adelaide Local Health Network's Mental Health Service,
48
and from there the complaint was escalated to the Network's CEO. The family did not contact the
Aged Care Complaints Commissioner and there is no evidence that they were advised to do so. None
of the state services referred their concern, or any actions taken in relation to it, to any
Commonwealth regulator.
The most important thing for a resident or their family is that any problems are acknowledged and
addressed. Their concern is not who they should approach about it--they want a result. They do not
want to repeat the whole complaint-making process, if they can do it once and get a response. It is
also important that their privacy and choices are respected.
In a facility that has two regulatory frameworks in place, such as Oakden, it is important that
complaints are addressed by appropriate bodies. This means that both the operators of these
facilities and all regulators involved must ensure that information about a serious complaint finds its
way to all relevant bodies, and not just one possible handler of the complaint.
The second area where there were issues was in government-to-government communication. It is of
some concern that the issue raised by Mr Spriggs' family was never brought to the attention of the
Commonwealth regulators. Under existing memorandums of understanding, had one of the
Commonwealth bodies been contacted with this complaint, its severity would have triggered sharing
of relevant information. However, with no such formal arrangements between SA Health and the
Commonwealth, there was no established pathway for this to occur.
It is also a concern that a formal inquiry into care at Oakden could be initiated by SA Health without
communication with the Commonwealth, which SA Health would have known was a funder and
regulator of the service.
The third area of communication in which the Oakden case is relevant concerns the flow of
information into and between regulatory organisations. It appears that prior to August 2016, there
was not full sharing of information about mandatory reports among the three Commonwealth
bodies. These reports concern unreasonable use of force or assault on a care recipient or unlawful
sexual contact with a care recipient.189 They do not necessarily require action by one of the
Commonwealth agencies, generally being matters for police investigation. However, provided they
contain sufficient detail, they are important potential sources of insight into whether there might be
underlying quality-of-care issues that contributed to the situation that prompted the compulsory
report.
There were also numerous instances, identified in Accreditation Agency reports or noted in the
Groves report, where incidents at a facility were not documented or incidents that should have been
reported to various agencies or databases outside the facility, were not.
Conclusion
Oakden had significant failures of care, and the Commonwealth's regulatory framework failed to
detect them. As a result, many aged care residents, including some of the most vulnerable and
189
Aged Care Act 1997, s. 63-1AA.
49
unwell in the aged care system, received poor-quality care and suffered as a consequence. On the
evidence assembled by the South Australian Chief Psychiatrist, the failures of care at Oakden were
longstanding. Accordingly, so was the failure of Commonwealth regulatory framework to detect
them.
While the situation at Oakden is far from typical, the circumstances that led to it are certainly not
unique. Oakden is a sentinel case and highlights areas for improvement in the regulatory system.
Several areas for potential improvement have been identified, particularly in relation to the structure
of the regulators and the accreditation system, the implementation of accreditation 'on the ground',
and the flow of information and communication among regulatory stakeholders. These are central to
the areas of improvement outlined in part two of this Report.
50
Chapter 4: Performance of Australia's aged care
regulatory system
Introduction
This chapter assesses the Australian Government's current aged care regulatory system against best-
practice regulatory principles. Adherence to best-practice principles is a reliable way to ensure that
government is:
adopting approaches that minimise the regulatory burden, using risk-based approaches in
the targeting of their compliance activities, being accountable for, and transparent in,
decision-making, and monitoring and evaluating both their own performance and the
achievement of regulatory outcomes.190
The performance of regulators must be aligned with public expectations, and regulators need to
operate consistently with their powers.191 This chapter also considers the performance of the
Australian aged care regulatory system in comparison with other countries. While regulatory
practice is necessarily nuanced in light of the context in which regulation is delivered, comparison
with countries with similar systems illustrates Australia's overall performance and areas where
improvement can be made.
A framework to analyse regulatory performance
There is an extensive body of literature and expertise regarding best-practice regulation. The
principles used are different in language, but common in features and intent. For the purposes of
this Review, the best-practice principles published by the Productivity Commission in its 2011 report
on aged care have been adopted,192 with the addition of 'role clarity' from the most recent OECD
principles of good governance.193 The resulting framework used to assess the performance of
Australia's system is shown in Box 2.
International comparisons were made against these principles, where relevant information assisted
our analysis. Seven countries were selected for comparison: New Zealand, Canada, England,
Germany, the United States, the Netherlands and Norway. These countries were considered
primarily because they are all developed countries facing similar challenges in maintaining the
190
Australian National Audit Office (ANAO), 2014, Administering regulation: achieving the right balance, p. i,
https://www.anao.gov.au/sites/g/files/net3241/f/2014_ANAO%20-
%20BPG%20Administering%20Regulation.pdf
191
Organisation for Economic Co-operation and Development (OECD), 2012, Recommendation of the Council
on Regulatory Policy and Governance, OECD Publishing.
192
Productivity Commission, 2011, Caring for older Australians, Appendix F, p. F.1. The Productivity
Commission identified four best-practice principles for residential aged care regulation. The fourth is
'streamlined reporting arrangements', which is considered by the Review as part of the other principles.
193
OECD, 2014, OECD best practice principles for regulatory policy, the governance of regulators, OECD
Publishing. http://www.oecd-ilibrary.org/governance/the-governance-of-regulators_9789264209015-en
51
quality of aged care services for a growing ageing population. Childcare and health regulatory
systems in Australia were also considered.
In practice, while it is possible to describe the regulatory systems of other countries and sectors, and
how they align with good-practice principles, little has been published evaluating how these systems
have performed. For some criteria, this meant that we did not rely significantly on international
comparisons.
For each criterion, we conclude with an assessment of whether the current aged care regulatory
system is broadly aligned with best practice, partly aligned or not well aligned. These assessments
are reflected in our recommendations in the second part of this report.
Box 2. Best-practice regulatory principles for residential aged care
Principle 1: Good governance
Clarity in jurisdictional responsibilities
Role clarity
Separation of policy advice from regulation
Well-structured complaints handling and a right of independent appeal
Freedom for advocacy
Effective and regular review mechanisms
Principle 2: Appropriate choice of standards
Principle 3: Responsive regulation to encourage and enforce compliance
Principle 1: Good governance
Good governance is:
the set of responsibilities and practices, policies and procedures, exercised by an agency's
executive, to provide strategic direction, ensure objectives are achieved, manage risks and
use resources responsibly and with accountability.194
A well-governed regulatory system should be carefully designed to allocate responsibilities clearly
and to define the roles of regulatory agencies. Good governance ensures that stakeholders using
that regulatory system, whether consumers or providers, have confidence in it and have avenues to
engage with the regulators and to appeal decisions they believe to be unfair. Good governance also
incorporates processes for review and improvement of the performance of the regulatory
framework.
194
ANAO and Department of the Prime Minister and Cabinet, 2006, Implementation of programme and policy
initiatives: making implementation matter, Better Practice Guide, Commonwealth of Australia, p. 13.
52
Clarity in jurisdictional responsibilities
A lack of clarity in jurisdictional responsibilities of governments or agencies involved in a regulatory
system can lead to important issues such as 'falling through the cracks', confusion for the regulated
entities, duplication of function and a reduction in confidence by consumers.
Performance of the Australian system
The regulation of aged care is primarily the responsibility of the Australian Government. In general,
there are few issues with jurisdictional responsibilities between tiers of government. However, as
demonstrated at Oakden, this is not the case for those facilities that are also regulated as health
services, under different standards, for different purposes, by different tiers of government.
Multi-level regulatory tracks create administrative complexity and, as noted in chapter three,
contributed to failures at Oakden. For example, the Quality Agency's 2015-16 annual report stated:
During 2015 to 2016 we teamed up with the Australian Council of Healthcare Standards
(ACHS) in a pilot audit project. The project aimed to test an approach to reduce the
regulatory burdens on services that are subject to both the Accreditation Standards and the
National Safety and Quality Health Service (NSQHS) Standards.195
However, it is not clear whether any progress has been made on this issue, nor in cases where a
state government is an approved provider. In its submission to this review, the Quality Agency did
not mention the pilot project, and said:
there is little to no information sharing between state governments and the Quality Agency.
Nor are there arrangements to share information with Australian Council on Health Care
Standards who were responsible for the accreditation of the health services provided by
Oakden or any other accrediting agencies for the Australian Commission on Safety and
Quality in Health Care.196
For aged care facilities that are also health facilities, Australia lacks jurisdictional clarity in its
regulatory system. Where facilities are state-run, they are also obliged to comply with any state-
based directives. In Victoria, for example, public residential care services are required to report on
their performance against the Victorian quality indicators for residential aged care.197 The Oakden
case has shown that this creates potential complications around responsibility, with an apparent
failure to maintain all forms of regulatory oversight.
In relation to complaints and compulsory incident reports, multiple agencies might be involved in a
regulatory response. An agency (such as the Australian Competition and Consumer Commission, the
Australian Health Practitioner Regulation Agency, state and territory regulators or ombudsmen) may
195
AACQA, Annual report 2015-16, p. 16.
196
AACQA, personal communication.
197
Department of Human Services, 2006, Beyond compliance, Government of Victoria,
https://www2.health.vic.gov.au/ageing-and-aged-care/residential-aged-care/safety-and-quality/beyond-
compliance, https://www2.health.vic.gov.au/ageing-and-aged-care/residential-aged-care/safety-and-
quality/improving-resident-care/quality-indicators-psracs
53
refer a complaint to the Complaints Commissioner. In other cases, referrals might be between the
Department, the Quality Agency and Complaints Commissioner. Police might also be involved in
cases of elder abuse allegations or fraud.
NOT WELL ALIGNED: Reform is needed to move towards best-practice regulation for clarity around
jurisdictional responsibilities.
Role clarity
Best practice dictates that roles and responsibilities of regulatory agencies need to be clearly defined
and delineated in legislation and procedures. This avoids overlaps, complexity and confusion among
the regulators, consumers and those being regulated:
For a regulator to understand and fulfil its role effectively it is essential that its objectives and
functions are clearly specified in the establishing legislation. The regulator should not be
assigned objectives that are conflicting or should be provided with management and
resolution mechanisms in case of conflicts. The legislation should also provide for clear and
appropriate regulatory powers in order to achieve the objectives and regulators should be
explicitly empowered to cooperate and coordinate with other relevant bodies in a
transparent manner.198
Performance of the Australian system
As described in chapter two, there are currently three main organisations with regulatory functions
and responsibilities relating to quality in residential aged care: the Commonwealth Department of
Health, the Australian Aged Care Quality Agency and the Aged Care Complaints Commissioner.
The Productivity Commission's 2011 report noted the inefficiencies in the system:
[M]any features of best practice 'responsive regulation' are difficult to achieve when one
aspect of regulatory responsibility (that is, accreditation and the assessment of performance
against Quality Standards) is structurally separated from compliance investigations and
enforcement decisions surrounding quality. Regulatory behaviour would be enhanced by
locating quality assessment within the same organisation that receives consumer complaints,
monitors compliance, provides information on ways that providers could improve the quality
of their care services and makes the enforcement decisions.199
The Productivity Commission went on to recommend that it is better to limit potential confusion and
increase the efficiency of regulation through establishing a single entity responsible for
investigations of non-compliance.
Responsibilities and powers in the Australian regulatory system regarding quality of care are defined
in the Aged Care Act 1997. However, as described in chapter two, relevant Acts and subordinate
198
OECD/Korea Development Institute, 2017, Improving regulatory governance: trends,
practices and the way forward, OECD Publishing, p. 25.
199
Productivity Commission, 2011, Caring for older Australians, p. 402.
54
legislation form a complex framework that can be difficult for stakeholders, including consumers, to
navigate.
Despite efforts to ensure clarity in roles among the regulators through their memorandums of
understanding, providers express confusion over the delineation of roles between the Quality
Agency and the Department in managing compliance with the Standards. There is overlap between
the requirement, implemented by the Department, for approved providers to deliver adequate care,
and the requirement, implemented by the Quality Agency, for providers to meet the Accreditation
Standards. Despite the Productivity Commission's recommendations, the situation remained largely
unchanged with the Living Longer Living Better reforms. Simplifying this complexity should be
considered in future reforms.
Benchmarking Australia with other systems
Like Australia, regulation of aged care in other countries is tied to supply and funding of residential
aged care services.
In Australia, the regulation of providers is carried out at the national level by the Australian
Government, so it is consistent across all states and territories.200 Unlike Australia, in almost half of
the international schemes considered, part of the administration or regulation is embedded in a
state or regional body. For example, in the US, licensing of providers for aged care is covered under
state-based licensing frameworks, which vary from state to state. The regulation of health and
hospital services in Australia is similar, in that all states and territories licence private health
facilities, although there are National Safety and Quality Health Service Standards against which
services are assessed.
However, the organisational structure of Australia's aged care regulatory scheme is similar to that of
other countries in that it contains multiple organisations that are required to work together. England
is an exception, with all regulatory functions consolidated into a single agency, the Care Quality
Commission (though complaints handling is separate),201 which is important for reasons set out
below. Placing all regulatory functions in the one agency is considered best regulatory practice as it
supports more seamless handling of cases.202 In this aspect, Australia does not achieve best practice.
In Australia, sharing information is a particular challenge in the tripartite organisational structure.
Memorandums of understanding have been negotiated and published, to foster cooperation among
the three agencies. This is good practice as the roles and responsibilities of each agency are set out
in a way that provides transparency and accountability. However, while the approach is sound, it is
not clear that enough information is being shared under the arrangements.
In most of the international systems considered, the objectives of the law and the powers provided
to regulators are set out clearly in law and are similar to those in Australia. An exception is the
200
There are residential aged care providers in Australia that are not funded under this scheme. They are
outside the scope of this Review as the funding and regulation of these parts of the sector is not under the
Aged Care Act 1997.
201
Which? Making a complaint about a care provider, http://www.which.co.uk/elderly-care/your-relatives-
needs/dealing-with-unsatisfactory-care/343077-making-a-complaint-about-a-care-provider
202
Productivity Commission, 2011, Caring for older Australians, Appendix F.
55
presence of specific laws and powers to protect consumers from neglect and abuse, which only
occur in England and Ontario, Canada. Other than the limited protection offered by the mandatory
reporting of assaults and the Charter of Rights and Responsibilities, such specific protections are not
yet present in Australia. It is clear from the review of literature that mechanisms to detect and
respond to elder abuse are a priority for aged care globally, and a report by the Australian Law
Reform Commission has made recommendations for significant change to national aged care laws to
combat elder abuse.203
PARTLY ALIGNED: Further improvement possible to achieve best-practice regulation for clarity of
roles and powers.
Separation of policy advice from regulation and interactions with
individual recipients
Regulators should not be assigned conflicting or competing functions or goals unless there is a clear
public benefit in combining them.204 Conflict can occur because a statutory decision-maker tasked
with determining an appropriate response to non-compliance is required to make a trade-off
between outcomes. For example, the Secretary of the Department may have to decide whether to
impose a sanction that would have the effect of closing a facility if the provider does not return to
compliance. This decision would remove the provider from the funding allocation for the system,
which in turn reduces the number of places available in government-accredited facilities.
Conflict can also occur when an agency that deals directly with consumers is also tasked with
decisions regarding the distribution of funds. Where government provides substantial funding or
subsidies to individuals and families, emerging best practice points to governance arrangements that
separate the policy agency from the 'consumer interface' agency.205
The other broad lesson from the history of regulation is that best-practice governance arrangements
should separate the policy advice agency from the independent regulator or the body that
administers the law.206 Making regulators independent from the changing agendas of governments
generally increases consistency and transparency in the regulatory approach, and confidence in the
regulator.
Performance of the Australian system
There is partial separation of functions in the Australian aged care regulatory system, but it is
incomplete. Accreditation against the standards is undertaken by the Quality Agency. This agency is
independent from the Department, which sets the policy and approves a residential aged care
provider for funding under the aged care system. This is in line with best practice to ensure the
independence of regulators.
203
Australian Law Reform Commission, 2017, Elder abuse--a national legal response, ALRC report 131,
Commonwealth of Australia.
204
Australian Law Reform Commission, 2017, Elder abuse--a national legal response, ALRC report 131,
Commonwealth of Australia.
205
Productivity Commission, 2011, Caring for older Australians, Appendix.
206
Productivity Commission, 2011, Caring for older Australians.
56
However, monitoring compliance with the Act, including enforcement action against breaches in
quality of care, is largely undertaken by the Department. The Department is also responsible for
decisions to approve providers to deliver aged care, funding of approved providers, and for policy
development in relation to residential aged care. This means that regulatory responsibility is not
functionally separated from either policy development or funding of services.
Benchmarking Australia with other systems
Across many regulatory schemes in Australia and internationally, there is generally greater
movement towards the separation of policy and regulation functions, which is regarded as good
practice. As noted above, Australia has partial separation of regulatory and policy functions through
the establishment of an independent accreditation agency. In most countries considered by the
Review, these functions are separated. In some cases, this is because policy work is done at the
national level and regulation is carried out by states or regional governments. In others, including
England,207 there is full separation, in that case between the Department of Health and the Care
Quality Commission. Ontario, Canada208 is one of the few places that does not separate the policy
and regulatory arms of government in relation to its residential aged care schemes.
The Australian schemes for quality of care in private hospitals and childcare also separate the policy
and regulatory arms of government.
NOT WELL ALIGNED: Reform is needed towards best-practice regulation for separation of policy
advice from regulation.
Well-structured complaints handling and a right of independent
appeal
Well-structured complaints handling involves all stakeholders in the improvement of care quality.
Timely and appropriate response to complaints empowers consumers to be involved in regulation. A
transparent complaint-handling scheme will inspire trust and confidence in a regulatory scheme.209
Complaints management supports regulators by ensuring all relevant information is received,
recorded and responded to appropriately. This is an essential element of any regulatory scheme
because, in between monitoring and compliance visits, complaints are a critical source of
information about facility quality, potential non-compliance and risk.
A well-structured complaint-handling scheme for residential aged care requires three distinct tiers of
complaint-handling processes. The first is within the aged care facility, since the most efficient way
for complaints to be handled in the first instance is usually by the facility itself. The second is
complaint escalation to a body that is external to and independent of the provider (for example, in
207
Care Quality Commission, 2015, CQC Corporate governance framework,
http://www.cqc.org.uk/sites/default/files/20151111_Corporate_Governance_Framework_August_2015.pdf
208
The system is different in each Canadian province, and the Review's focus was on Ontario as the province
with the largest population; Meadus, J., 2010, A brand new world: Ontario's new Long-Term Care Homes Act,
Advocacy Centre for the Elderly Newsletter, Toronto.
209
Bismark, M.M., et al., 2011, 'Remedies sought and obtained in healthcare complaints', BMJ Quality &
Safety, Vol. 20(9), pp. 806-810.
57
cases where the consumer is unhappy with the provider's response to the initial complaint, where
the consumer or a staff member does not want the provider to know about a complaint,210 or where
another agency or third party wishes to provide information to the independent body). The third tier
is to provide for complaints about the actions of the second tier independent body. Best-practice
governance ensures that the second and third mechanisms are independent from the funding and
regulatory arms of government.
Performance of the Australian system
The Australian system for handling complaints about residential aged care aligns with best practice
in relation to independence and right of appeal.
Client surveys provide evidence of consumer and industry confidence in the current complaints
scheme. Overall satisfaction with its operation is high with 86 per cent of service users (complainants
and providers) satisfied or very satisfied.211
The Complaints Commissioner has power to investigate complaints, but does not have powers to
enforce compliance. The latter is the role of the Department. Resolution is the key focus of the
Complaints Commissioner, to protect care recipients from harm and ensure that the provider meets
obligations under law. Where scope for improvement is identified, the Commissioner provides
relevant information to the provider so that it may take appropriate steps to improvement. In cases
where this involves non-compliance, the Department or Quality Agency is also informed. The
Department and the Quality Agency determine appropriate steps to bring the provider back into
compliance.
The Australian scheme provides appropriate review mechanisms through the Commonwealth
Ombudsman for decisions made under the scheme. Appeals in relation to the regulator's or the
decision-maker's determinations are transparent and at arm's length from both the policy and
regulation agencies. Australia is meeting best-practice principles in this respect.
Benchmarking Australia with other systems
Germany, New Zealand and Australia are the only countries considered by the Review with a single
complaint mechanism that is independent from the regulatory and funding arms of government.
Almost all other countries still have multiple avenues for making complaints about residential aged
care quality.
Australia, Canada and England all have established mechanisms for the right of appeal on complaints
handling and appropriate mechanisms for appeal of the regulator's decisions.
BROADLY ALIGNED: Australia is aligned with best-practice regulation for well-structured complaints
handling and right of appeal.
210
For example, out of fear for personal safety, where a complaint to the provider has not elicited an
appropriate response or effected the desired change, or where the issue is deemed out of the control of the
supplier of the service.
211
Complaints Commissioner, Annual report 2016-17, p. 37.
58
Freedom for personal and policy advocacy
It is considered best practice for all regulatory schemes to provide consumer protection though free
access to personal and policy advocacy. This is particularly relevant for government services like
health and disability services and aged and childcare, where people may not be able to speak for
themselves:
Personal advocacy involves standing alongside a person and speaking on their behalf in a
way that represents the best interests of that person. Advocacy agencies provide an
independent, free and confidential service to consumers through the delivery of information,
referral, support, advice and/or representation to both individuals and groups.212
Appropriate government involvement includes funding such services and establishing appropriate
governance arrangements to ensure that they are independent of government, including any
regulator. According to the Productivity Commission, there is also a broader role for both industry
and consumer organisations to advocate for their constituencies to influence policy development.213
Performance of the Australian system
Australia has established mechanisms to provide freedom of access to advocacy services for
residential aged care residents and their families. Personal advocacy is supported through
government-funded advocacy services.
Individual confidential advocacy services have been identified as fundamental in supporting older
people through the aged care system, particularly with the move towards consumer-directed care.214
Advocacy services are delivered through the National Aged Care Advocacy Program, which supports
the rights of consumers and aims to empower them to make informed decisions about their care. A
single provider, the Older Persons Advocacy Network, was engaged from 1 July 2017 to deliver
independent and free advocacy, education and information for consumers. The government is also
developing a National Aged Care Advocacy Framework with input from advocacy providers and
organisations representing both aged care providers and consumers.215
As noted in chapter two, Australia actively involves the industry and community in policy
development for residential aged care, for example, through stakeholder engagement by the
Department and the Quality Agency in the development of the Single Quality Framework.216 Policy
advocacy is also supported through several committees with stakeholder representation that
facilitate advocacy and are involved in co-design of aged care policy.
212
Productivity Commission, 2011, Caring for older Australians, Appendix F, pp. F5-F6.
213
Productivity Commission, 2011, Caring for older Australians, Appendix F, p. F6.
214
Department of Health, National Aged Care Advocacy Program Guidelines, p. 4,
https://agedcare.health.gov.au/support-services/national-aged-care-advocacy-program-guidelines.
215
Department of Health, The National Aged Care Advocacy Program, https://agedcare.health.gov.au/support-
services/the-national-aged-care-advocacy-program.
216
AACQA, Consultation: guidelines for new draft quality standards under Single Aged Care Quality
Framework, https://www.aacqa.gov.au/providers/education/the-standard/june-2017/quality-agency-
developing-guidelines-single-aged-care-quality-framework.
59
Benchmarking Australia with other systems
Limited information about advocacy services in other countries was available to this Review. New
Zealand has a Health and Disability Advocacy service, which also provides advocacy services to the
elderly in residential homes.217 A Director of Advocacy is contracted to provide a nationwide
advocacy service.218 The free service operates independently of government and funding bodies.
While the US has ombudsmen to resolve complaints and offer assistance and support, advocacy in
the context described above is performed by citizen advocacy groups located in each state219 but
generally not supported by public funds. The groups range from small collections of concerned
citizens working within their community, to structured organisations with budgets and staff.220
In Ontario, the Ministry of Health encourages residents and their families to form councils and
support groups. Such groups are supported by the Ontario Association of Residents Councils, which
is partly funded by the provincial government and partly through provider fees.221 The United
Kingdom has several organisations that advocate on behalf of older people, including the national
Older People's Advocacy Alliance and Age UK, which advocate on behalf of older people and are
charity-funded.222
BROADLY ALIGNED: Australia is aligned with best-practice regulation for freedom for personal and
policy advocacy.
Effective and regular review mechanisms
An evidence-based policy approach means providing the best possible evidence to inform the
development and implementation of sound public policy. Reliable and accessible data and quality
research are essential components of such review. Without data, review mechanisms cannot
effectively improve schemes and maintain their alignment with the needs of consumers, providers
and the public interest.
Performance of the Australian system
Building review periods and mechanisms into law is one way to ensure that stakeholders and
governments can consider and improve regulation over time.223 There was a one-off review of
217
Health and Disability Commissioner, Rest home, http://advocacy.hdc.org.nz/case-studies/residential/rest-
home
218
Health and Disability Commissioner, Background of the Advocacy Service,
http://advocacy.hdc.org.nz/about-us/background-of-the-advocacy-service
219
The National Consumer Voice for Quality Long-Term Care, How to solve problems in a nursing home,
http://theconsumervoice.org/uploads/files/long-term-care-
recipient/9._How_to_Solve_Problems_in_a_Nursing_Home.pdf, p. 2
220
National Consumer Voice for Quality Long-Term Care, Citizen advocacy groups,
http://theconsumervoice.org/issues/for-advocates/citizen-advocacy-groups
221
Ontario Association of Residents' Councils, OARC Objectives, Richmond Hill, 2017; Ontario Association of
Residents' Councils, OARC funding, http://www.ontarc.com/Funding.html
222
Older People's Advocacy Alliance, Our history, http://opaal.org.uk/about-us/about-us-sub-page-2/ and Age
UK, We provide advice, http://www.ageuk.org.uk/no-one/we-provide-advice/
223
For example, the Fuel Quality Standards Act 2000, s. 72; Dental Benefits Act 2008, s. 68; Product
Stewardship Act 2011, s. 109.
60
reforms to the Aged Care Act created during the Living Longer Living Better reforms of 2012-13,
which was recently completed.224 However, there are no periodic review requirements built into
either the Aged Care Act or the Quality Agency legislation.
While the Aged Care Financing Authority, a statutory body, has a standing brief to review the
financing of the aged care sector, there is no equivalent body that is specifically mandated to
examine quality, compliance, or regulation more generally.
Historically, there has been a significant lack of publicly available data225 and policy-relevant
evidence on residential aged care. This has limited the scope for comprehensive and independent
assessment of the system.
The regulatory scheme for residential aged care in Australia collects a large volume of information
for accreditation, approval, complaints handling, and compliance and enforcement functions;
however, data published by the regulators tend to be high-level process data, which limits its utility
in review of system performance.
NOT WELL ALIGNED: Further reform is needed to move towards best-practice regulation for
effective review mechanisms.
Principle 2: Appropriate choice of Standards
Best-practice regulation involves choosing the right kinds of standards and regulating the right kinds
of things to deliver an effective system. Standards should enable the proper assessment of quality
and risks for clients, and focus on outcomes rather than inputs or activities.
The Productivity Commission observed that:
The appropriate standard is one that matches the circumstances of the policy in terms of
how clearly the goals and objectives are defined. For example, where goals can be clearly
defined then it can be assumed that the regulated party knows the objective and less
prescriptive, performance based standards can be implemented.226
The residential aged care sector globally has generally moved to establish measures that set out a
minimum set of standards against which compliance can be measured. There has been criticism of
this approach from industry and consumers both in Australia and overseas. The argument is that it
results in regulators only checking processes and policies, rather than being genuinely able to
consider and measure the quality of care being delivered by the facility.
224
The review was required by section 4 of the Aged Care (Living Longer Living Better) Act 2013. A single
review such as this is more common in legislated review provisions than regular periodic reviews.
225
Productivity Commission, 2011, Caring for older Australians, p. xcii.
226
Productivity Commission, 2011, Caring for older Australians, Appendix F, p. F6.
61
The effectiveness of a standard is linked to its ability to achieve the desired outcome. However, it is
also generally considered important that the regulatory design allow for innovation,227 so that
providers may both meet the standards and continue to improve service delivery.
According to the Productivity Commission, performance standards are attractive because they focus
on the outcomes to be achieved rather than the means of achieving them. And while they do not
provide an incentive for continuous improvement or best practice, they do not preclude it.228
However, the Productivity Commission also observed that too much emphasis on process and
documentation adds to cost and can detract from quality-of-care outcomes.229
Performance of the Australian system
Do the Accreditation Standards lead to quality of care?
It is generally agreed that accreditation of approved providers in Australia has had a positive impact
on the quality of care for residents in aged care facilities. How much of this positive impact relates to
the use of the Accreditation Standards is not clear in evaluations to date.
It is argued that accreditation has removed underperforming aged care homes, raised the standards
of quality across the sector, established a degree of consistency, developed a focus on continuous
improvement and resident-focused care, and set a minimum standard for quality.230 However, there
is evidence to suggest that accreditation may not be adequate in delivering quality care outcomes
for consumers. This is discussed in greater detail in part two of this Report.
Process versus outcome
Despite general agreement that accreditation is positive, the Standards have been criticised for
providing limited incentives to improve quality. Concerns have been raised that standards are
assessed on documentation, rather than evidence relating to what residential care providers are
actually doing.231 For some providers, passing accreditation might be an end in itself, rather than
focusing on quality improvement and outcomes for consumers.232
The outcomes under the standards tend to be process-driven. This is most evident in Standard 1,
which is intended to be an umbrella standard for improving quality across all the outcomes, but
focuses on management systems and processes--human resources, education and staff
development, regulatory compliance and information systems.
227
Productivity Commission, 2011, Caring for older Australians, Appendix F, p. F7.
228
Productivity Commission, 2011, Caring for older Australians, Appendix F, p. F7. See also Chapter 10,
especially pp. 215-216 and p. 218.
229
Productivity Commission, 2011, Caring for older Australians, p. 218.
230
Australian Aged Care Quality Agency, Annual report 2015-16; The Standard. September 2007, the Aged
Care Standards and Accreditation Agency.
231
NSW General Purpose Standing Committee, No 3, 2015, Registered nurses in NSW nursing homes.
232
Groves, A., et al., 2017, The Oakden report, South Australia Department for Health and Ageing.
62
Minimums, scales, and improvement
The accreditation system states that continuous improvement is meant to be achieved under the
Standards, with outcomes relating to this specified under each Standard.233 However, there is little
incentive to achieve above the minimum standards, as there is no grading system or sliding scale in
place. Providers are assessed as having met or not met each outcome.
The Productivity Commission argued that some operators survive in the current system because the
system requires only minimum standards; they would fail in a more competitive market.234 If
operators were assessed on sliding scales against the outcomes, consumers could be better
informed about the performance of providers against the outcomes. This in turn could encourage
providers to improve performance.
Are the Standards appropriate?
Ensuring compliance with standards is different from ensuring that those standards meet consumer
expectations. Stakeholders have identified a range of areas in which the standards may need
improvement or more explicit targeting to consumer needs, such as end-of-life care and limiting the
use of restraints. In addition, the Australian Law Reform Commission's investigation into elder abuse
found that many incidences of alleged abuse and neglect may not be reported as they do not come
under the assault definition in the Aged Care Act.
The design of some standards to focus on processes and documentation can take the focus away
from outcomes. This was a significant issue in the Oakden case. Standards need to be designed with
an outcome focus.
These issues are addressed in more detail in chapters seven and eight.
Quality of life
Australia's Accreditation Standards have always included some quality-of-life outcomes under
Standard 3, Care recipient lifestyle.
The concept of the importance of quality of life as an indicator of quality of care was recognised with
the introduction also of a legislated Charter of Care Recipients' Rights and Responsibilities.235 While
the Charter does cover much the same material as Standard 3 of the Accreditation Standards, it is
more expansive and better oriented to the individual care recipient. The extent to which providers
adhere to the Charter is not measured.
Putting the care recipient experience at the centre of measuring quality of care in a home can best
be done through engaging directly with consumers and their families. The Quality Agency's
introduction of the consumer experience report as an integral part of the site audit process and
compliance measurement goes some way towards a consumer-centric evaluation of compliance.
However, this is in its early stages.
233
There is also a separate requirement that providers have a plan for continuous improvement in place.
234
Productivity Commission, 2011, Caring for older Australians, Overview, p. XLIV.
235
Under the User Rights Principles 2014.
63
The development of the Single Quality Framework, described in chapter two, is intended to make a
range of improvements to aged care, including an increased focus on the quality of consumers'
lives.236 The standards,237 framed from a consumer perspective, incorporate several types of
regulatory design, as they include statements about outcomes for consumers, value statements for
providers, and some guidance about pathways for compliance (through their sets of requirements).
Benchmarking Australia with other systems
To the extent that Australia's Accreditation Standards include aspects relating to quality of life and
the dignity of older people, they reflect good regulatory practice.238 However, previous reviews and
submissions to this Review have noted that the vague descriptions of the standards, outcomes and
guidance material contribute to inconsistency in assessment.
In most OECD countries, the starting points for quality assurance in residential care are development
of minimum standards, licensing or accreditation of facilities, and training requirements for workers.
Like Australia, most regulatory systems use some form of accreditation to authorise aged care
providers. Two-thirds of OECD countries have compulsory accreditation or certification as a
condition for receiving government funds. For that reason, accreditation standards are perceived,
and used, as the minimum standards with which providers must comply.239
However, some countries add extra standards or indicators to improve quality of care. For example,
the US has a set of national standards that indicates the 'minimum standard' of long-term care
services; there are additional state standards aimed at prompting quality in service delivery.
Government-funded facilities in the US must participate in a quality assurance and performance
improvement program, which features a system of star rating to enable comparison of providers.240
In most overseas jurisdictions (except New Zealand), quality-of-life and quality-of-care indicators are
used to guide quality improvement, in conjunction with the accreditation standards. They are
generally implemented in addition to the minimum accreditation or certification standards;
participation in quality improvement programs is mandatory in several countries.
More recently, elements have been added to address the quality of life of recipients, basic human
rights, as well as human dignity (in the Netherlands, England, the US, and Ireland), individualised
care planning processes, and reporting systems for adverse events and complaints (Ireland, US and
England). Standards specific to dementia care are getting more attention, for example in Ireland and
England.
236
Department of Health, Single quality framework: focus on consumers,
https://agedcare.health.gov.au/quality/single-quality-framework-focus-on-consumers
237
Department of Health, 2017, Single quality framework--draft aged care quality standards consultation
paper, p. 5.
238
OECD/European Commission, 2013, Better policies for better lives, Country note: Australia. A good life in old
age, OECD https://www.oecd.org/els/health-systems/Australia-OECD-EC-Good- Time-in-Old-Age.pdf
239
Scrivens, E., 2002, 'Accreditation and Regulation of Quality in Health Services' in Saltman, R. et al, (eds),
Regulating entrepreneurial behaviour in European health systems, Open University Press, p. 94.
240
American Health Care Association, Improving Lives by Delivering Solutions for Quality Care, Facility
Resources, Survey and Regulation (Five-Star Quality Rating System, 2017)
https://ahcancal.org/facility_operations/survey_reg/Pages/FiveStar.aspx
64
An increasing focus on the experience of consumers is becoming evident in several OECD countries.
The standards in many jurisdictions emphasise the experience of the resident and their family as a
key component of determining the quality of aged care. The English standards, in particular, are built
around person-centred care including standards related specifically to safeguarding residents from
abuse, safety, dignity and respect, as well as practical standards related to food and drink, and
premises and equipment. Australia's Accreditation Standards feature some similar outcomes.
Ontario also has standards that more directly reflect quality outcomes for residents, including
standards related to continence care, falls prevention, use of restraints, nutrition and pain
management. They include more stringent approaches to restraints than in Australian regulation.
The OECD has noted that translating quality-of-life concepts into indicators can be challenging.241
There is an effort to incorporate them through collection of information from care recipients
directly. Indicators focus on user experience or satisfaction, as well as social aspects of the long-term
care (LTC) experience:
For example, Denmark, Spain, the Netherlands, England, and the United States survey
patient and user experience. In England, a National Adult Social Care Survey has used ASCOT
to survey all LTC users. ASCOT is a tool designed to capture information about LTC outcomes
from the perspective of the LTC recipients, which focuses on items such as cleanliness and
comfort, good nutrition, safety, control over daily life, social interaction, occupation,
accommodation and dignity. Denmark, Austria, Finland, and the Netherlands are starting to
use ASCOT, too. In the Netherlands, legislation requires all LTC facilities to carry out surveys
of users' experience based on the national quality framework for "responsible care".242
England is noteworthy, because the minimum quality standards that need to be met for registration
already incorporate residents' experience, and the monitoring and compliance process aims to
assess the extent to which residents have quality of life, as well as quality of care.243
While Australia is aligned with other countries in mandating minimum standards of care through its
accreditation system, and moving towards greater consumer input in measuring quality of care,
there are areas where reform is needed as an impetus to future quality improvement. A number of
countries reviewed are implementing reforms in relation to the way in which performance is
measured, as well as what is being measured, to improve quality of aged care. Childcare and hospital
services in Australia also provide some guidance in these areas.
Reform in measuring performance against standards could include sliding-scale assessment against
expected outcomes, further expansion of consumer input to assessment, or mandated quality
improvement programs.
241
OECD/European Commission, 2013, A good life in old age? Monitoring and improving quality in long-term
care.
242
OECD/European Commission, 2013, A good life in old age? Monitoring and improving quality in long-term
care, OECD/European Commission, p. 19.
243
Care Quality Commission, Registering and Monitoring Services, http://www.cqc.org.uk/what-do-we-
do/how-do-we-do-our-job/registering-monitoring-services
65
Reform in what is being measured needs to focus on standards that measure quality of care through
genuinely targeting outcomes, rather than only processes. More work also needs to be done to
include specific indicators that reflect consumer needs, and the overall quality of life residents in
aged care facilities experience.
PARTLY ALIGNED: Further improvement possible to achieve best-practice regulation for appropriate
standards.
Principle 3: Responsive regulation to encourage and
enforce compliance
Responsive regulation is the use of the appropriate regulatory tool in response to the circumstances
at hand. It can influence behaviour and attitudes of regulated entities to compliance:
A person that experiences responsive regulation will as a result have a more positive
assessment of their experience of the investigation and enforcement process, more positive
attitudes towards the regulator and compliance, and, crucially, better compliance behaviour,
than a person that does not experience responsive regulation.244
Responsive regulation has two key components:
1. Enforcement or rewarding action escalates or de-escalates according to the conduct of the
regulated entity. "By credibly asserting a willingness to regulate more intrusively, responsive
regulation can channel marketplace transactions to less intrusive and less centralized forms
of government intervention... [It supports] both a hierarchy of sanctions and a hierarchy of
strategies of varying degrees ... "245
2. A means by which regulators can prioritise their supervision of those they regulate: to
determine where on the pyramid (Figure 4) a stakeholder sits and therefore what kind of
regulatory scrutiny or action they require.
Responsive regulation does not define what implementation tools should be used, instead focusing
on the relationship between degrees of compliance and the degrees of support or enforcement they
require. In different regulatory settings, different tools will be used. Figure 4 is taken from the Aged
Care Compliance Policy Statement of the Australian Government, and shows how the concept has
been adopted in aged care.246
244
Nielsen, V., Parker, C., 2009, 'Testing responsive regulation in regulatory enforcement', Regulation &
Governance, Vol. 3, pp. 376-399.
http://law.unimelb.edu.au/__data/assets/pdf_file/0011/1675064/NielsenandParkerTestingResponsiveRegulat
ioninRegulatoryEnforcementPreprintformat1.pdf
245
Ayres, I., Braithwaite, J., 1994, Responsive regulation: transcending the deregulation debate, Oxford
University Press, pp. 4-6.
246
Aged Care Compliance Policy Statement 2015-2017, Australian Government Department of Social Services.
66
Figure 4. Australian Government aged care responsive and risk-based regulation
strategy
Responsive regulatory principles need to be implemented according to the regulatory setting.247
Recent reviews of responsive regulation discuss how the theory has developed and been modified
and embedded into regulatory practice in several sectors.248 It remains a dominant regulatory
strategy globally.249
247
There are nine principles of effective implementation that guide responsive regulation.
These are set out in detail at Braithwaite, J., 2011, 'The essence of responsive regulation',
UBC Law Review, Vol. 44(3), pp. 475-520.
248
Special issue, 'Twenty years of responsive regulation: an appreciation and appraisal',
2013, Regulation and Governance, Vol. 7(1).
249
Wood, C., et al., 2010, Applications of responsive regulatory theory in Australia and
overseas. RegNet Occasional Paper 15; RegNet Research Paper No. 2015/72.
http://regnet.anu.edu.au/sites/default/files/publications/attachments/2015-
05/ROP15_0.pdf; Ivec, M., Braithwaite, V., 2015, Applications of responsive regulatory
theory in Australia and overseas: update, RegNet Occasional Paper 23; RegNet Research
67
The responsive approach to sanctions
Knowledge that a regulation exists is usually enough for most entities in an industry to comply
voluntarily.250 For this reason, under a responsive regulation model, regulators spend the larger
proportion of their time educating the industry and its stakeholders about their responsibilities and
the objectives of the regulations. At the other extreme are entities that will try to gain an advantage
by purposefully not complying. The most significant penalties and strongest compliance actions exist
in regulation to provide appropriate punishment for this minority of players.
In between these two extremes there may be circumstances leading to non-compliance that are not
entirely intentional. Examples include a lack of clarity in the laws, emergence of a new risk or niche
within the industry, an inexperienced employee or manager, the loss of critical expertise, a change in
technology, or a change in the practices of the business. Tools designed to encourage or support a
return to compliance are usually used to respond to this middle range of non-compliance.
The pyramid in Figure 4 illustrates that most of the industry is represented by the base, and
recognises that only the extreme cases will require the enforcement response at the pinnacle.
However, this pyramid describes the degree of regulatory action needed to achieve (or return to)
compliance. It does not describe how widespread non-compliance might be and does not necessarily
mean that significant breaches are rare, just that it is rare that forceful regulatory action will be
necessary to correct them.
The responsive approach to supports
The escalation to sanctions as a means of enforcing compliance needs to be complemented by
activities that reward positive behaviour and contributions. This has led to the addition of a 'pyramid
of supports':251 a hierarchy of strategies that build on strengths within a system to achieve
performance that moves beyond compliance.252
The pyramid of supports is different because it aims to push industry towards the pinnacle through
supporting strategies, incentives and non-regulatory tools. The pyramid of supports places compliant
industry members at the base of the pyramid and the pinnacle represents only those that are
leading and operating above minimum standards.
Regulation is no longer the default position of government.253 Regulatory agencies are using more
non-regulatory tools like incentives, service support and behavioural insight-led nudges to support
industry sectors to go beyond compliance. Non-regulatory tools can form part of the responsive
strategy in a pyramid of supports.
Paper No. 2015/72.
SSRN: https://ssrn.com/abstract=2586888 or http://dx.doi.org/10.2139/ssrn.2586888
250
Ivec, M., Braithwaite, V., 2015, Applications of responsive regulatory theory in Australia
and overseas: update, Regulatory Institutions Network, Australian National University, p.5.
251
Healy, J., 2011, Improving health care safety and quality: reluctant regulators, Ashgate.
252
Borck, J.C., Coglianese, C., 2011, 'Beyond compliance: explaining business participation in
voluntary environmental programs' in Parker, C., Nielsen, V.L., (eds), Explaining compliance:
business responses to regulation, Edward Elgar, p. 139.
253
The Australian Government Guide to Regulation, Commonwealth of Australia, 2014, p. 2.
68
An understanding of the risks and the challenges
A mature assessment of risk is necessary for a regulatory scheme to support a responsive model of
regulation. This is because there need to be mechanisms by which a regulator understands where in
the regulatory pyramid a regulated entity might sit, and therefore what kind of response is called
for. It is also desirable when there are a lot of regulated entities, so that there is an efficient way to
make those assessments. Residential aged care, with nearly 200,000 residents, 2,500 services, and
nearly 1,000 providers, will be more effectively regulated if the regulator can assess where risks lie in
the system.
The Department of Industry describes risk assessment as the:
process of analysis to determine the extent and likelihood of occurrence of undesirable
events or situations as compared against benchmarks or standards.254
For risk assessment to be effective in a regulatory environment, it requires two things: an
understanding of what factors can contribute to undesirable events; and use of the results of that
assessment to influence regulatory activity.
Performance of the current Australian system
A responsive approach to sanctions
Australia's current system for regulation of the residential aged care sector is effective in its delivery
of a responsive approach to sanctions. It uses the tools available, including some non-regulatory
tools, to work with industry to bring individual facilities back into compliance. An international
comparative assessment of Australia's regulatory framework from 2007 stated:
Australia relies on a consultative relationship between providers and regulators. Education
rather than directive regulation is a major focus of the government's activities. Regulations
are, as a matter of principle, very broad and not specific.255
The tools used mostly relate to the provision of support through fostering collaboration between
approved providers or through the provision of experts such as carers, nurses, medical practitioners
or specialists. Sanctions are typically paired with a non-regulatory tool to assist the facility to return
to compliance.
Research by the OECD indicates that enforcement is often not strong enough in the regulation of
aged care quality generally across OECD countries, and that services are only terminated or have
their funding cut in the most blatant cases, while other less serious cases are treated leniently.256 In
our Review, we considered this in the context of responsive regulation, by looking at the history of
254
Department of Industry, Innovation and Science, July 2016, Best practice guide to using standards and risk
assessments in policy and regulation, p. 2,
https://industry.gov.au/industry/IndustryInitiatives/PortfolioRegulationReform/Documents/Best-practice-
guide-to-using-standards-and-risk-assessments-in-policy-and-regulation.pdf
255
Weiner, J., et al., Feb 2007, Quality assurance for long-term care: the experiences of England, Australia,
Germany and Japan, Public Policy Institute Issues Brief 2007-05, p. 8.
256
OECD/European Commission, 2013, A good life in old age? Monitoring and improving
quality in long-term care, European Commission.
69
the strongest regulatory intervention normally used in the Australian system: revocation of
approved provider status.
Only a small number of aged care facilities have faced revocation of approved provider status. The
evidence on whether escalating compliance action is used, so that severe penalties follow on from
incrementally staged measures, is mixed. In the last decade, of the ten facilities that have had
approval revoked by the Department, all but one came following a full three-year accreditation. On
the other hand, of those ten, seven had experienced limited accreditation periods or variations prior
to the three-year accreditation that they held at the time their approved status was revoked. So,
most had at some point in the past experienced closer attention from the Quality Agency around
their standard of care.
It is not clear whether this means that escalation of compliance measures is not often used, or that it
cannot be used because the emergence of significant quality-of-care problems necessitates more
immediate regulatory action. In any case, severe compliance action is very seldom used in the
Australian aged care system.
There is some evidence that the use of an escalating approach to sanctions has also had a positive
impact on compliance in the sector. A study of data on accreditation activities and outcomes from
1999-2000 to 2007-08 attributed the low incidence of penalty-based sanctions to the effectiveness
of measures that precede the imposition of sanctions.257
Independent research and formal reviews have credited the introduction of the 1997 Aged Care Act
with addressing some of the problems with achieving continued quality improvements in the
sector.258 The available data indicate that the accreditation scheme has been relatively effective at
encouraging compliance with the minimum standards. However, the experience of Oakden indicates
that this is not always successful.
A responsive approach to supports and innovation
Australia's aged care regulatory system does have some features that provide a responsive approach
to innovation and increased quality. The government has developed some non-regulatory tools to
support consumer choice in residential aged care. Examples include the Quality Indicator Program
and consumer experience reports, discussed previously in this chapter. The Quality Agency has
annual 'Better Practice Awards' that promote quality and encourage innovation, although the effect
of these on the overall improvement of care is yet to be measured.
The Australian system is beginning to test and adopt some of the supportive strategies that have
been employed in other countries. Currently, they appear to be uncoordinated because they are not
presented as an overall strategy that aims to improve quality and drive the industry to perform
beyond compliance. Thought needs to be given to how these tools fit with the pyramid of sanctions
257
Ellis, J.M., Howe, A., 2010, 'The role of sanctions in Australia's residential aged care quality assurance
system', International Journal for Quality in Health Care, Vol. 22(6), pp. 452-460.
258
O'Reilly M., Courtney M., Edwards H., 2007, 'How is quality being monitored in Australian residential aged
care facilities? A narrative review', Int J Qual Health Care, Vol. 19, pp. 177-182; Australian National Audit
Office, Managing residential aged care: the Aged Care Standards and Accreditation Agency Ltd. 2003ANAO
Canberra Audit report No 42. 2002-03.
70
and how they are to be promoted to empower elements of self-regulation and drive change in
behaviour across the sector.
Risk-based allocation of resources
Regulatory enforcement and inspections should be based on evidence and measurement: deciding
what to inspect and how should be grounded on data and evidence, and results should be evaluated
regularly.259 A regulator should not undertake a regulatory activity unless there is a reason for that
activity. As the Senate Economics Committee commented:
Regulators need to make decisions about how to use their limited resources to address
conflicting priorities.260
In deciding when to intervene, government regulators in Australia may use risk-based tools and
analysis of available data, taking into account the need to distribute resources effectively and remain
aware of areas of risk within the industry and areas of likely non-compliance.261
As noted in chapter two, the Australian residential aged care regulatory scheme currently contains
elements of risk assessment as part of the compliance response.262
Since late 2014, the Quality Agency has had a visit prioritisation and risk ratings policy. The policy
combines several risk-related concepts, including risk rating, risk factors and likelihood of event, to
arrive at what it refers to as a risk profile. However, the policy is difficult to apply, and the
assessment of risk is also overlaid with other considerations. The policy's purpose is to "manage and
prioritise planning of visits to residential aged care homes". Elsewhere in the policy it appears risk
rating is only one of four factors that affect the "form and frequency of assessment contacts" under
case management.263
Risk factors may not be sufficiently aligned with outcomes for consumers. Of the 23 risk factors
listed in the policy, only one relates to the care needs of consumers (number 17 "high-risk-
demographic care recipients"), and while one of the factors identifies new facilities as a possible
source of risk, none addresses risks that might be associated with facilities being old, or with low
levels of investment. Finally, the full range of risk assessment has only a minor impact on the
259
OECD, 2014, Regulatory enforcement and inspections, OECD best practice principles for regulatory policy,
OECD Publishing.
260
Senate Standing Committee on Economics, 2013, The performance of the Australian Securities and
Investments Commission.
261
For example, New South Wales Environmental Protection Authority, Risk-based licensing,
http://www.epa.nsw.gov.au/licensing/assessprocess.htm; Australian Tax Office, Risk-differentiation
framework https://www.ato.gov.au/Business/Large-business/In-detail/Risk-Differentiation-Framework/Risk-
differentiation-framework-fact-sheet/; NSW Department of Education and Training, Childcare regulatory
framework, https://www.det.nsw.edu.au/media/downloads/what-we-offer/regulation-and-
accreditation/early-childhood-education-care/regulatory-framework/enforcement/ecec-compliance-
policy.pdf; Australian Government Department of the Environment and Energy, Compliance monitoring
program 2016-17, https://www.environment.gov.au/system/files/resources/75aae702-cebb-46e1-8ff9-
bf0c4f216d82/files/compliance-monitoring-program-2016-17.pdf
262
Department of Health, Aged care compliance operations manual, September 2014; AACQA, Visit
prioritisation and risk ratings policy.
263
AACQA, personal communication.
71
proposed frequency of visits, with the very highest risk rating resulting in only "at least two
assessment contacts within the financial year in addition to their annual unannounced
assessment".264
Recent cases, including Oakden, raise questions about whether underlying risk factors (such as the
complexity of care) and longer-term sanctions and accreditation history are not sufficiently
considered in the current risk assessment. The links between risk assessment and periods of
accreditation are also not clear.
The findings of this Review suggest that current decision tools:
are not being adequately used to determine which facilities and residents might be higher
risk
are not being used across all regulatory interventions.
A reformed, risk-based accreditation system should better protect care recipients from harm. This is
discussed further in chapter eight.
Benchmarking with other schemes
All the international schemes considered in this Review use elements of responsive regulation.
However, it was difficult to obtain good information about those schemes and their performance.
A responsive approach to compliance and sanctions
Responsive approaches to accreditation and compliance actions, such as sanctions, require both
rules that allow incremental action and practices that show that regulators make use of the
incremental actions that the rules allow. The length of accreditation and certification periods
appears to be more variable in some jurisdictions than it is in Australia. New Zealand applies
different certification periods dependent on the apparent risks identified during the previous
certification audit. The certification acts as an entry point to the scheme and the longest period
without re-certification is four years. Like Australia, the shortest certification period is one year.
Unannounced visits and spot checks are part of the compliance monitoring system in all countries
considered, however the triggers and length varies considerably. Some regulators undertake
surprise or unannounced visits to carry out checks. The Joint Commission is the US's oldest and
largest standards-setting and accrediting body in health care. The Joint Commission accredits and
certifies nearly 21,000 health care organisations and programs in the US. In 2006, it moved to a
program of exclusively unannounced visits,265 since scheduled visits allowed hospitals to make a big
effort for the site visit and thereafter return to their usual ways of working.266
264
AACQA, personal communication.
265
The Joint Commission, Facts about the unannounced survey process,
https://www.jointcommission.org/facts_about_the_unannounced_survey_process/
266
Healy, J., 2011, Improving health care safety and quality: reluctant regulators, Ashgate Publishing.
72
A responsive approach to supports and innovation
There is a range of approaches to applying responsive regulation through positive supports and
innovation. Quality improvement through the use of indicators has been a significant trend, as is
public reporting.
Most countries are developing systems, often separate from compliance regulation, to support
improvement in the aged care sector. These are often systems designed to support consumer
choice. They include quality-of-care and quality-of-life indicators, and frequently involve direct
consultation with consumers within the facility.
In the Netherlands, the CQ Index, a standardised system for measuring, analysing and reporting
client experience, is used to indicate the quality of long-term care from the resident's perspective.267
Norway moved to a system of indicators in 2014 to enable annual reports on the relative quality of
health services and change in quality over time.
Unlike Australia, most schemes use some sort of scale to assess and describe a facility's compliance
with certification or accreditation standards. The US uses star ratings, and New Zealand uses a risk or
traffic light (red, amber, green) system linked to its risk assessment framework.
The New Zealand traffic light system is coupled to its risk assessment process and to the
determination of the length of the certification (their equivalent to accreditation) period. The
certification standard reports become part of their online audit report, which can be used by
consumers in assessing the current state of a facility. The online report is updated between
certifications, for example when a facility comes back into compliance.
England is using ratings embedded within its accreditation regime rather than as a separate system.
It is taking advantage of technological improvements to present data in a more accessible way to
consumers. This reflects problems England had previously experienced with its star-rating system,
which consumers found difficult to use and which was not having a strong impact.
NOT ALIGNED: Reform is needed to move towards best practice in the use of responsive regulation
to encourage and enforce compliance.
Conclusion
Considered in an international context, the regulatory system governing aged care in Australia is far
from a poor performer. While complex, Australia's current regulatory system aligns well with some
accepted best-practice regulatory principles. Specific areas that can be strengthened, and where
reforms can draw on the better-practice examples of other countries, include: improved clarity and
reduced overlap in the roles of regulatory authorities; clearer distinction between regulators and
policy agencies and improvement in associated information-sharing processes; embracing and
267
Van der Veen, R., Mak, S., 2010, Developing and ensuring quality in long-term care.
Netherlands National report, Interlinks, p. 10,
http://interlinks.euro.centre.org/sites/default/files/WP4_NL_final.pdf
73
embedding standards that reflect a consumer-centred approach to aged care; and adopting a risk-
based approach to accreditation and compliance monitoring.
This overall assessment of the performance of Australia's current aged care regulatory system is no
comfort to the individuals, families and friends who have suffered appallingly in circumstances such
as those in the Makk and McLeay wards at Oakden. It is scant reassurance to a community and
public that is aware of instances of substandard quality of care. The next chapters of this report turn
to a central question for this review. Having reviewed what went wrong at Oakden, the question is
what needs to happen in Australia's aged care regulatory environment to avoid such failings in the
future?
74
PART 2: How can we improve quality
regulatory processes?
The decision to enter, or place a loved one in, residential aged care is one of the most difficult
decisions most people face in their lifetime. In many cases, the decision is precipitated by a sudden
decline in the health and independence of a parent or family member, adding additional stress.
When choosing a home, consumers and their families want assurances that the care provided will be
personalised, safe and meet their needs. While considerable reform has occurred over the past 20
years with the goal of improving the safety of care and the information available to consumers to
inform their choice of provider, the issues identified at Oakden and in submissions to this Review
highlight that more needs to be done.
This part of the Report explores options to adjust regulatory processes to better protect residents
and ensure they receive good care. Key priorities in our proposed reform of aged care quality
regulation are:
Place consumer rights and safety first
Ensure that the regulatory system can quickly identify and remedy poor-quality or unsafe care
Make clear, comparative information about care quality available to consumers and providers,
to enable informed choice and quality improvement
Establish a regulatory culture that ensures core standards are met, while encouraging high-
quality care
Acknowledge and reward providers that consistently provide high-quality care.
An issue raised during consultations was staffing in residential aged care, with the majority of
comments related to mandating staff ratios. Feedback also referred to improving conditions
(particularly remuneration) for aged care workers, auditing staffing levels as part of accreditation, or
ensuring a registered nurse is on duty at all times.
We acknowledge and appreciate the important role of aged care workers in ensuring that residents
are safe, well-cared for and have a good quality of life. However, the workforce issues raised in
submissions are broader than aged care quality regulatory processes. We note that the Government
has established an industry-led taskforce to develop an aged care workforce strategy. The taskforce
is where these issues would be most effectively considered.
Based on the feedback from the Review consultation process and research into best-practice
regulation, we identify key elements for a more effective aged care regulatory system and propose
measures to facilitate transition to a new model.
75
Key elements of a more effective quality regulatory system
Integration of the regulatory system
Centralise accreditation, compliance and complaints handling under a single independent
agency.
Develop a centralised database for real-time information sharing.
Information for consumers and providers on care quality
Report provider performance against an expanded list of evidence-based quality indicators.
Implement a star-rated system for public reporting of provider performance.
Support consumers and their representatives to exercise their rights
Promote and protect consumers' rights through education, advocacy and engagement with
consumers, their families and carers.
Develop a serious incident response scheme.
Limit the use of restrictive practices through guidelines, and monitor compliance.
Effective accreditation and compliance monitoring
Develop an effective, risk-based approach to accreditation that supports early identification of
poor-quality care and rewards high performing providers.
Ensure that assessment against the Accreditation Standards is consistent, objective and
reflective of current expectations of care.
Enhanced complaints handling processes
Develop strong complaints-handling processes and powers of the Aged Care Complaints
Commissioner.
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Chapter 5: Integration of the regulatory system
An independent regulatory commission
In the past 20 years, steps have been taken to improve regulation of the quality of residential aged
care and the regulatory governance arrangements that support it. These changes were designed to
transition core regulatory functions away from the Department and to separate responsibility for
policy development from accreditation and compliance functions.
What are the problems with the current approach?
Complexity of regulatory governance arrangements
Part one outlined the complexity of aged care quality regulation. Service providers are subject to
regulation managed by Commonwealth, and by state and territory governments. Compounding this,
there have been many iterative changes to the Act and subordinate legislation. It is difficult for
consumers and providers to understand their rights and responsibilities, the roles played by the
different regulatory agencies and how to navigate the system to resolve issues.
The complex segregation of regulatory functions adds to this confusion for consumers and providers.
For example, the Quality Agency has the authority to revoke accreditation of a facility; however,
where serious incidents of non-compliance are detected, the Department of Health has sole
authority to impose sanctions against the service provider managing the facility. In such cases, the
Department relies on written reports developed by the Quality Agency to gauge the severity of non-
compliance and seriousness of the risk posed to residents.
Current arrangements, where the Department retains both policy and compliance responsibilities,
represent an inherent conflict of interest not in line with best-practice regulation.268
Ineffective data capture and sharing
The Aged Care Guild noted:
Our members have observed that inconsistencies and a lack of coordination by the
Department of Health, the Quality Agency and Complaints Commissioner sees these
regulatory agencies consider facilities and single issues with only a limited insight and
perspective.269
Fundamental to an agile regulatory system that responds quickly to care failures is a strong
intelligence gathering and analysis capability. This involves integrated information systems,
cooperation across agencies and with providers. While the three regulators have developed
memorandums of understanding that describe processes and timeframes for information sharing,
the segregation of function generally limits data sharing.
268
Productivity Commission, 2011, Caring for older Australians.
269
Aged Care Guild submission (ID#1032742486).
77
These issues with regulatory data management have been noted in several reviews of Australia's
aged care quality regulatory system spanning more than 15 years270,271.
Improving integration of the regulatory system: the new Aged Care
Commission
The Productivity Commission proposed the establishment of an independent regulatory commission
to consolidate quality regulatory functions. This Review supports that recommendation for a
centralised organisation. However, we present a different model for the make-up and function of
this organisation, which we propose should be called the Aged Care Quality and Safety Commission
(the Aged Care Commission) to more clearly denote its purpose.
The principal objectives for centralising aged care quality functions under a single independent
Commission are to:
Provide more effective regulation of quality and safety
Provide greater clarity around regulatory roles and responsibilities
Improve real-time intelligence sharing
Facilitate better information sharing with consumers
Enhance the role for consumers in guiding regulatory processes.
This chapter deals with the ways in which the design of regulatory governance arrangements for the
Aged Care Commission can help achieve these objectives. The recommendations that follow in later
chapters of this Report build on these arrangements and outline a vision for implementation of
these guiding principles.
The proposed governance structure and function of the Commission is depicted in Figure 5.
270
ANAO, 2011, Monitoring and Compliance Arrangements Supporting Quality of Care in Residential Aged Care
Homes, Audit Report No.48 2010-11.
271
Productivity Commission, 2011, Caring for older Australians.
78
Figure 5. Governance structure and functions of the Aged Care Quality and Safety
Commission
The Aged Care Quality and Safety Commission Board
A board should be appointed by government to govern the Aged Care Commission and meet its
responsibilities under legislation. The board should comprise individuals with relevant experience
and skill sets drawn from health, aged care and disability services. The board will report to the
Minister for Aged Care in relation to performance of the Commission's functions.
The Aged Care Commissioner
The aged care system needs an overarching, independent, Aged Care Commissioner that
provides a clear, well-communicated, governance hierarchy that brings leadership and
accountability to the aged care system.272
A new Aged Care Commissioner should be appointed to manage the day-to-day operation of the
Commission and work with the other commissioners to ensure the effective stewardship of quality
regulation and information sharing.
The Aged Care Commissioner will be responsible for core Commission functions and report directly
to the board. This will include responsibility for corporate services that provide key operational
support, including data management and technology services, strategic communications and media
and human resource management.
272
The Australian Medical Association submission (ID# 833514879).
79
It is further recommended that appeals against decisions made by the Aged Care Complaints
Commissioner or the Aged Care Quality Commissioner be handled by the Aged Care Commissioner in
the first instance. If the matter is not resolved to the satisfaction of the complainant, the matter
could then be referred to the Administrative Appeals Tribunal.
The Aged Care Quality Commissioner
In accordance with the Productivity Commission's model, we recommend that the Quality Agency
will become a statutory function within the Commission.
The newly designated Aged Care Quality Commissioner will oversee the functions currently managed
by the Quality Agency, including:
accreditation
compliance monitoring
delivery of training and education to support providers to understand their responsibilities
under the Act
development of information resources
management and publication of data.
To simplify arrangements for compliance enforcement, it is recommended that the Department of
Health's responsibility for imposing sanctions on providers determined to have breached the
Standards be transferred to the new Aged Care Quality Commissioner. This makes that agency solely
responsible for their enforcement. This approach streamlines the decision-making process and
reduces confusion for providers.
The Aged Care Quality Commissioner will work closely with the Department, the Australian
Commission on Safety and Quality in Health Care and other stakeholders to periodically review the
Standards, outcome measures and assessment guidance material.
The Aged Care Complaints Commissioner
The Aged Care Complaints Commissioner will also become a statutory role within the Aged Care
Commission. The current functions and independence of the Aged Care Complaints Commissioner
would be retained under this model. However, we recommend increased powers, which are
described in chapter nine.
The Aged Care Consumer Commissioner
The community, the repository of our social values and our humanity [which is] so important
in this sector, has been marginalised and has little input.273
The Aged Care Roadmap places the consumer at the centre of care.274 To achieve this objective,
consumers must have a direct role in shaping regulatory processes governing the care that they
receive. While consumer representatives participate on advisory bodies, including the Aged Care
273
Aged Care Crisis submission (ID# 341409579).
274
Aged Care Sector Committee, 2016, Aged Care Roadmap.
80
Sector Committee and the Aged Care Quality Advisory Council, it is critical that consumers also have
a voice on the Aged Care Commission to ensure that consumer perspectives help shape Commission
policies and processes.
The Aged Care Consumer Commissioner will engage broadly with consumers, their families and
carers, as well as consumer peak bodies and advocates, and feed this intelligence into operational
policy and process design. This Commissioner will also work collaboratively with consumer groups to
develop accessible, plain English information and educational resources, and help consumers
understand quality regulation, provider responsibilities, consumer rights and how to exercise those
rights.
Chief Clinical Advisor
Clinical care and clinical leadership is a vital component of services delivered in residential aged care
facilities. The growing incidence of chronic disease and co-morbidities will only increase the demand
on this role. In 2016, the majority (56.1 per cent) of people in permanent residential care were rated
as having high care needs. Between 2009 and 2016, the proportion of high-care residents with
complex health care needs rose from 13 per cent to 61 per cent.275 Continued growth in the
incidence of mental disorders and diabetes within the community are likely to continue to place
strain on limited clinical resources in nursing homes.276
Clinical care, including medication administration and management, remains the main source of
complaints received by the Aged Care Complaints Commissioner.277 Issues with the quality of clinical
care were also raised as core reasons for sanctions imposed against providers managing the Makk
and McLeay wards at Oakden.278
It is proposed that the appointment of a Chief Clinical Advisor to the Aged Care Commission will
provide clinical leadership, support the Commission to adapt its processes to better align with
changes in clinical practice in aged care facilities, and collaborate with the Australian Commission on
Safety and Quality in Health Care to improve alignment of clinical care practice with other health
care settings.
The Chief Clinical Advisor will provide guidance on the development of clinical outcome measures
and guidance material for accreditation. They will champion the development of a clinical
governance framework for residential aged care facilities (described in detail in chapter eight) and
provide information to nursing staff on best practice in clinical care. The Chief Clinical Advisor will
also support the review of facilities found to be delivering ineffective or unsafe clinical care.
275
Australian Institute of Health and Welfare 2017, GEN, http://www.gen-agedcaredata.gov.au, retrieved 7
September 2017.
276
Goss, J., 2008, Projection of Australian health care expenditure by disease, 2003 to 2033. Cat. No. HWE 43.
Australian Institute of Health and Welfare.
277
Complaints Commissioner, Submission to the Senate Community Affairs References Committee; Aged Care
Complaints Commissioner, Annual report 2016-17, p. 19.
278
Groves, A., et al., 2017, The Oakden report, South Australia Department for Health and Ageing.
81
The role of the Department of Health
Under the recommended changes, the Department will retain responsibility for policy formulation,
but will no longer have responsibility for imposing sanctions against providers failing to meet the
Accreditation Standards.
The Department would continue to be responsible for granting providers approved provider status.
While the Productivity Commission recommended transferring this function to the new Commission,
we consider the approval process to be more of a prudential function. Given that the Australian
Government acts as guarantor for bonds paid by residents to providers on entering residential care,
it is appropriate that the Department retain the function of assessing the prudential risk posed by a
new provider.
While the Review sees compelling arguments for transferring the control of price setting for
subsidies to an independent authority, akin to the Independent Hospital Pricing Authority, this is
outside the scope of this Review.
Recommendation 1. Establish an independent Aged Care Quality and Safety Commission
to centralise accreditation, compliance and complaints handling.
Actions
Establish an Aged Care Commissioner who chairs an umbrella regulatory body with:
(i) Care Quality Commissioner
(ii) Complaints Commissioner
(iii) Consumer Commissioner
(iv) Chief Clinical Advisor.
An integrated data management system
Intelligence gathering and effective data management is critical to ensure that the regulatory system
is responsive, both to support the mitigation of risk and to rapidly detect and address poor-quality
care. According to the Australian National Audit Office (ANAO):
The ultimate test of the regulatory framework is its ability to respond to issues in a timely and
appropriately calibrated manner. Past incidents in the sector serve as a reminder of the
potential impact of non-compliance on frail and elderly residents, and the importance of
adopting a proactive and flexible approach to the administration of the framework, including
the timely reporting and assessment of information collected by the Department and Agency
staff.279
279
ANAO, 2011, Monitoring and compliance arrangements supporting quality of care in residential aged care
homes. Audit report No.48 2010-11.
82
The frequency of surveyor visits to a nursing home is based on the assessed risk of provider non-
compliance. This approach is in line with the Organisation for Economic Co-operation and
Development's (OECD) Best Practice Principles for Improving Regulatory Enforcement and
Inspections,280 which note that:
Enforcement needs to be risk-based and proportionate: the frequency of inspections and the
resources employed should be proportional to the level of risk and enforcement actions should
be aiming at reducing the actual risk posed by infractions.
Information systems and data management are critical to underpin this risk-based approach to
resource allocation. The OECD also notes that:
Information technology is essential in order to achieve major effectiveness and efficiency
improvements in regulatory enforcement and inspections. It is the indispensable basis for risk-
based planning, and for effective co-ordination of inspections. At the same time, if there is no
comprehensive view of the information system across all types of inspections, the result can be
duplicated expenses and work, incompatible systems, lack of information sharing. To ensure
that information technology can deliver its full benefits, governments should develop and
adopt a coherent vision of the development of information systems in enforcement and
inspections - this vision should aim at ensuring co-ordination and data sharing.
We consider that this comprehensive vision of data management is currently missing in aged care
quality regulation in Australia.
The Quality Agency draws on various intelligence to support risk-based profiling of providers. This
information falls into two broad categories:
(a) Prospective risk indicators--factors that the Quality Agency finds through analysis of compliance
data are frequently associated with provider non-compliance. These risk indicators include the
loss of key personnel at a nursing home, changes in management, relocation of premises, and
sudden changes in the complexity of care that the service manages. The Quality Agency uses
such information to predict the likelihood of non-compliance and allocates resources
accordingly.
(b) Performance data--information on the actual quality of care delivered by a provider, which may
include information gained from site visits, provider non-compliance history, complaints and
incident referrals, and experiences of care reported by consumers, their families, carers, and
staff at nursing homes.
What are the problems with the current approach?
In our view, for aged care quality regulation to function effectively, data management must reflect
the following principles:
Timely access to quality data from all relevant sources
Effective processes for data analysis to guide regulatory policy and processes
280
OECD, 2014, Regulatory enforcement and inspections, OECD best practice principles for regulatory policy,
OECD Publishing.
83
Ongoing evaluation of the effectiveness of data management
Refinement of data management
Transparency of regulatory performance
Figure 6 depicts key data inputs and outcomes for effective management of aged care quality
regulatory data.
Figure 6. Data inputs and outcomes for management of aged care quality data
It became clear during this Review that the current approach to data management fails to meet
these objectives. This undermines risk-based profiling, compliance monitoring, continuous quality
improvement and consumer choice. For the benefits of the new Aged Care Commission to be
realised, the current deficiencies in data management outlined below must be addressed.
Poor integration of data
Despite the importance of ongoing data sharing by regulators with co-dependent functions, there is
currently no connectivity between the databases used by the Department, the Quality Agency and
the Complaints Commissioner. Ironically, the Department and the Complaints Commissioner both
use the National Complaints and Compliance Information Management System database, yet
neither agency can access the data held by the other. The Quality Agency uses different systems.
84
The ANAO noted in its 2011 review of monitoring and compliance arrangements,281 that the
Department's National Approved Provider system does not directly interface with the Quality
Agency's Better Business Program system. Consequently, data on key risk indicators, such as changes
to key personnel in residential aged care homes, are relayed manually by the Department. The
ANAO noted that this increased the risk of the system not being updated with the new information.
Criteria for transmittal of information among the agencies mean that only a fraction of the data
collected by each one is available to the other regulators. Between July 2016 and June 2017, less
than 15 per cent of complaints received by the Complaints Commissioner were relayed to the
Quality Agency.282 While many complaints may not be directly relevant to the Quality Agency or
warrant further investigation, collectively they may paint a picture of emerging issues in the care
delivered at a facility, which may guide surveyor investigation.
Likewise, more detailed information on issues identified during site visits by the Quality Agency may
inform decisions by the Complaints Commissioner on whether subsequent complaints on related
aspects of care merit further investigation.
Poor communication between Commonwealth and state and territory agencies
As described in chapter three, the tragic incidents at Oakden are partly attributable to the lack of
formalised communication processes between the Commonwealth and state and territory agencies
responsible for the management and oversight of aged care facilities in their jurisdictions.
Serious complaints about medication mismanagement and unexplained bruising on a resident at
Oakden were raised with the Principal Community Visitor283 in June 2016 and then with Northern
Adelaide Local Health Network (NALHN). This led the CEO of NALHN to request South Australia's
Chief Psychiatrist to undertake an extensive review of clinical care within the Oakden facility in
December 2016 and appoint a senior nurse manager on 9 January 2017 to oversee delivery of
clinical care. Inexplicably, the Commonwealth aged care quality regulators were not advised of these
issues and instead found out about them through a media report on 18 January 2017.
The Department and the Complaints Commissioner are the only agencies with which the Quality
Agency has formalised communication arrangements, greatly limiting information sharing with
Commonwealth, state and territory agencies that regulate or monitor other aspects of service
delivery in residential aged care homes relevant to quality of care. This includes state- and territory-
operated mental health visitor schemes and the managers of multi-purpose facilities.284
There is also an untapped capacity for private and state-based health professionals to report
suspicions of poor care to Commonwealth regulators for further investigation. A study published in
281
ANAO, 2011, Monitoring and compliance arrangements supporting quality of care in residential aged care
homes. Audit report No.48 2010-11.
282
Complaints Commissioner, Annual report 2016-17, p 24 - 468 referrals to the Quality Agency. Note that
some referrals are likely to be of complaints received in 2015-16.
283
Groves, A., et al., 2017, The Oakden report, South Australia Department for Health and Ageing, p. 77.
284
Multi-purpose facilities include nursing homes that are co-located with hospitals. This arrangement is more
common in regional and remote areas and are frequently publicly-operated.
85
2014 revealed that 11 out of 12 Newcastle residential aged care homes reported greater than 50
hospital transfers for every 100 residents each year.285 This significant interface with medical
professionals could provide valuable information to the Commission on possible inappropriate care.
Inefficient processes for gauging consumer, family and staff views on care
A number of submissions to the Review commented on the importance of relevant, timely and
transparent reporting of consumer experiences to assist consumers to make appropriate choices
and effect cultural change. In its submission, COTA Australia said:
COTA believes that for consumer experience reports to be effective, an annualised collection of
views should occur. Three years old views about a facility do not provide the relevant
transparency of consumer experience required to effect cultural change or assist consumers
make choices between facilities.286
The perspectives on care shared by consumers, family and aged care staff through interviews with
quality surveyors during site audits are an important source of information of areas for provider
improvement. The collection of this information only during three-yearly accreditation audits
reduces the currency of this intelligence and its value to risk profiling.
Current approaches to gathering this information also limit its value. As discussed further in chapters
seven and nine, many consumers, family members and staff noted that fear of retribution is a
deterrent to raising criticisms of provider performance with surveyors during site visits.287
Furthermore, since only 10 per cent of consumers, their family and representatives are interviewed
during site visits, key information may be missed.
Ineffective risk profiling of providers
In the wake of the Groves report, the Quality Agency commissioned the Nous Group to provide
independent advice on opportunities to improve its approaches and processes. The Nous Group
found significant issues with the Quality Agency's approach to risk profiling. The report noted that
"there was an expectation (by the Quality Agency staff and providers' staff) that all Expected
Outcomes would be met at accreditation audits".288 The key findings were that:
The accreditation process for the Makk and McLeay wards at Oakden did not allow the earlier
history of the facility to be understood and applied to the assessment of risk and compliance
monitoring. The Quality Agency did not consider the inherent risk of the Makk and McLeay
wards as part of a facility for residents with highly complex mental health support needs and
severe behavioural symptoms.
The various visits to Makk and McLeay wards identifying issues did not result in a decision to
escalate to a review audit. The review audit in 2017 was triggered by external information.
285
Arendts, G., Howard, K., 2010, 'The interface between residential aged care and the emergency
department: a systematic review'. Age and Ageing, Vol. 39(3), pp. 306-312.
286
COTA Australia submission (ID#743548634).
287
Submissions (ID#459100113) and (ID#591055944).
288
The Nous Group, External independent advice: Australian Aged Care Quality Agency (2017).
86
As noted in chapter four, the Quality Agency's risk framework, including its risk assessment
approach, does not sufficiently differentiate the risk profiles of facilities the Quality Agency
accredits and monitors, or adequately guide the required levels of resource allocation.
We agree that improvement of the Quality Agency's risk-profiling methods is critical to ensuring that
regulatory compliance is more responsive and can better anticipate issues with high-risk facilities
such as Oakden. We identify additional weakness in the Quality Agency's risk-profiling strategy, as
described in Box 3.
Box 3. Weaknesses in the existing risk-profiling strategy
Findings Description
Delayed access to risk Many of the prospective risk indicators used by the Quality Agency
indicator data to profile provider risk and allocate support are not regularly
reported by providers. Instead, the Quality Agency collects these
data largely through site visits to facilities, which can in some
instances be almost two years apart. This greatly limits the capacity
of the Quality Agency to prospectively identify providers at risk of
non-compliance.
Limited consideration of The Quality Agency does not weight individual risk factors in its risk
the value of individual risk assessment of provider non-compliance based on the reliability of
factors during risk profiling each indicator's association with provider non-compliance.
Likewise, there is no mechanism for assessing the relative
importance of specific indicators as prognostic markers of more
serious non-compliance. This may reduce the reliability of risk
profiles.
Insufficient use of Only a small proportion of complaints are transmitted to the Quality
complaints data Agency, limiting its ability to identify trends that may signal a need
for further investigation.
Insufficient differentiation The Quality Agency currently rates provider risk according to three
of the risk posed by rating levels. This is insufficient to effectively support regulatory
providers resource allocation.
A lack of transparency Processes for ongoing analysis of the effectiveness of risk indicators
around processes for and the risk-profiling methods are not described and the results of
review of the risk profiling reviews are not published.
methodology
Limited information While the Quality Agency provides some information to providers
available to providers during site visits, limited data are available on the association of risk
about risk indicators and indicators with non-compliance, and limited information on how
strategies for addressing providers can address these risks as they arise.
them
Poor accountability of regulatory performance
In his submission289 to the Review, Professor Joe Ibrahim noted:
289
Professor Joe Ibrahim submission to the Senate Community Affairs References Committee.
87
There is a paucity of empirical research into [residential aged care facilities], regulatory
mechanisms and quality of care. This is related to a number of factors: a lack of dedicated
funding to support research into quality of care in RACFs; the small number of researchers or
academics engaged in the field and; restricted access to, as well as high costs in obtaining data
essential to this type of research.
Research and data are critical both to assess the performance of the regulatory system and to
identify emerging issues in care that warrant greater focus from regulators. While the proportion of
residential aged care homes found to comply with all 44 outcome measures has increased steadily
since 2000, this statistic does not give a clear impression of the quality of care delivered. Moreover,
the high compliance rate makes it difficult to ascertain what areas of care should be improved.
Complaints data plays a vital role in identifying issues, but is inevitably subjective and may provide
an incomplete view of issues with care.
We see the value in using regulatory data to assess regulatory performance. We consider that data
from other sources, including independent, peer-reviewed research, is essential to ensure that
regulators are accountable and that findings on their performance are contestable.
The OECD noted:
The reliability of the data used is of particular importance. As a rule, data that is directly the
result of an agency's processes (e.g. number of prosecutions or sanctions, which is a number
the agency can directly influence based on changes in enforcement policy) should never be
used to assess compliance levels, because it is by no means "independent" data, and it creates
negative incentives.290
We did not find any formalised processes for capture of independent research findings in
compliance process review and re-design. The application of research data to inform regulatory
practice is covered in more detail in chapters five and eight.
Poor transparency of performance data
Data on performance is critical to enable providers to better understand how they perform relative
to similar services, and to understand what aspects of their service they deliver effectively and what
needs to be improved.
Publishing performance data also assists consumers to understand the quality of available services
and exercise choice. This in turn drives competition between providers, which can improve care
quality.
Currently, very little performance data is published. Improving the quality of published performance
data is an important consideration of this Review and is dealt with in detail chapter six.
290
OECD, 2014, Regulatory enforcement and inspections, OECD best practice principles for regulatory policy,
OECD Publishing.
88
Improving information gathering and analysis
Improving the capture, management and publication of data is a core theme of this Report. We
recommend changes that will improve the collection and use of data by the new Aged Care
Commission, with processes for sharing that data outlined in subsequent sections.
Improve access to data
We recommend establishing a shared database for management of all data on accreditation,
compliance and complaints handled by the new Aged Care Commission. This will give access to a
broader set of data on other regulatory functions to inform the work of the Complaints
Commissioner and the Quality Commissioner. The database will also be a repository for data
obtained from other sources including consumer experience reports, intelligence from state and
territory government agencies, reportable assaults, and other mandatory reporting data.
Consideration should be given to the development of automated systems to better manage the
larger dataset and raise 'red flags' to draw regulators' attention to changes in providers'
circumstances that warrant further investigation.
Communication with state / territory government agencies
There is a clear need for better communication between the Commonwealth and state and territory
government agencies for timely notification of incidents occurring in Commonwealth-funded nursing
homes. State and territory governments have systems that collect data and report on patient
incidents and complaints in state-operated health services. Some of these systems track
investigation of these matters and record any outcomes reached. This information could provide the
new Aged Care Commission with early warning of concerns with care delivered in public residential
aged care homes.
There is also solid justification for establishing formalised reporting arrangements with local hospital
networks that manage care in state-operated nursing homes, multi-purpose facilities and specialised
care facilities, and with managers of the state-based mental health visitors schemes.
The Review suggests that the Australian Government refer these matters for consideration to the
Australian Health Ministers' Advisory Council.
Intelligence gathering from consumers, families and aged care staff
The Nous report noted that the Quality Agency depends largely on external sources of information
to provide an indication that poor care is delivered in a nursing home.291
We recommend that the Quality Agency launch the consumer experience report questionnaire
online so that consumers, their families and carers can provide information year round.
Furthermore, online surveys should be developed for staff to provide similar feedback on residential
aged care home performance. This will help to address the existing sporadic engagement with these
stakeholders through the accreditation process. It is further proposed that the new Aged Care
291
The Nous Group, External independent advice: Australian Aged Care Quality Agency (2017).
89
Commission and advocacy groups provide education on the new instrument, to support better
engagement.
These surveys should complement, rather than replace, interviews with consumers, families and
staff. However, consideration should be given to conducting interviews by phone, off-site meetings
or email, where practical, to address the significant concerns raised in submissions to this Review
about fear of retribution for adverse comments.
We also recommend that engagement with informants be increased with interviews being
conducted with 20 per cent of consumers or their representatives, to ensure a more representative
sampling of views and experiences.
Develop a more responsive regulatory system
The Nous report proposed several changes to the Quality Agency's approach to profiling the risk
posed by providers of non-compliance. The recommendations relating to risk profiling are described
in Box 4.292
Box 4. Changes proposed by the Nous Group to Quality Agency risk-profiling processes
Revise the risk framework to ensure the assessment of higher-risk services and the
more extensive capture of information from sources of key indicators of risk are used
to inform case management, visit planning and resource allocation
Identify services that are inherently higher risk or have an ongoing history of issues to
consider how these should be monitored under case management, including a watch
list of high-risk facilities
Expand the case management to monitor high-risk services
Revise the existing risk framework, and re-design policies and procedures to improve
the identification and management of higher-risk facilities and to address the specific
risks in different types of services. Under the strengthened risk-based model, more
frequent compliance monitoring and targeted approaches would be applied to higher-
risk facilities than those with low risk. The risk framework should provide the Quality
Agency:
(i) Revised risk stratification model that identifies the characteristics of low,
medium and high-risk facilities
(ii) Process for determining the causes behind any significant change in
compliance status (e.g. from many 'not met' expected outcomes to none in a
short timeframe)
(iii) Process for a compliance monitoring watch list for the highest risk facilities,
whether or not they have non-compliances recorded
(iv) Process for tailoring the audit plan to address specific risks relating to certain
services and applying to site visits for high-risk facilities, and ideally all services.
Regularly review the regulatory performance of the Quality Agency to ensure that the
risk stratification of services, compliance outcomes of diverse types of audits,
emerging sector risks and quality improvements in the sector are correlated. This
292
The Nous Group, External independent advice: Australian Aged Care Quality Agency (2017).
90
would involve regulator analysis of facilities that have regular or significant non-
compliance with the Accreditation Standards or determination of 'Serious Risk'
findings to identify trends or common characteristics.
Develop and resource a more established approach to external intelligence gathering
on services including determining arrangements to support the better exchange of
information in services where multiple parties are involved in regulation and quality
monitoring to ensure pertinent information is shared and reduce unnecessary
regulation burden.
We endorse these recommendations. In addition to the changes to data capture and integration
recommended above, we propose that the following actions be taken to increase the effectiveness
of risk profiling:
Providers should be required to update information on key risk indicators whenever their
circumstances warrant reporting this information to ensure that risk profiles are current and
accurate.
Risk indicators should be weighted to reflect their reliability as markers of non-compliance.
There should be more extensive use of complaints data to gauge emerging issues with the
quality of care in residential aged care homes.
The levels of the risk rating scale used to assess provider risk of non-compliance should be
increased from three to at least five to ensure that high-risk providers are more clearly
differentiated and compliance monitoring is appropriately stratified.
The processes for ongoing evaluation of the effectiveness of risk profiling and individual risk
indicators should be published.
The Aged Care Commission should publish information on the relationship between risk
indicators and non-compliance, ongoing performance of risk profiling, and strategies to help
providers address risks as they arise.
In our view, a strengthened risk profiling methodology is critical to improving the responsiveness of
the regulatory system to emerging issues with care quality. Chapter 8 explores how this tool can be
used to assign regulatory resources where they are most needed.
Continuous review and improvement
The Review recommends that the Aged Care Commission develop and publish information on more
rigorous processes for reviewing regulatory performance. It should include an explanation of how
information obtained from performance reviews and acquired from other sources is used to refine
regulatory processes.
While trends in compliance and provider satisfaction are important and should form part of this
process, the Aged Care Commission should use external data to contextualise and validate
assumptions made about the effectiveness of regulation drawn from internal process statistics. This
more expansive appraisal should be published.
91
Recommendation 2. The Aged Care Commission will develop and manage a centralised
database for real-time information sharing.
Actions
(i) The Australian Health Ministers' Advisory Council (AHMAC) consider options to
improve sharing patient / resident information between state operated acute and
mental health services with the Commission
(ii) The Commission will develop options to capture the views of residents, families and
staff all year round
(iii) Assessment contact visits must seek the view of 20 per cent of consumers and their
representatives
(iv) The Commission will contemporise risk indicators
(v) Residential aged care facilities must report risk indicators to the Commission when
they occur
(vi) The Commission will build an expanded risk-profiling tool that incorporates additional
intelligence to better support risk management
(vii) The Commission will develop a robust process to review provider risk profiling and
publish outcomes
(viii) The Commission will share information with residential aged care facilities about
common areas of non-compliance and complaints
There is a key role for independent research to inform this review process. Despite the high
compliance rates reported by the Quality Agency, peer-reviewed literature reveals several
concerning aspects of residential aged care that require greater focus.293 The Commission should
provide greater clarity around how issues with care quality identified through academic studies
guide compliance and education activities.
Research on the quality of residential aged care faces many barriers, principally the lack of targeted
funding and access to regulatory data. A review of the literature and information indicated that
investment in aged care research is limited to a few areas, notably including neurodegenerative
disorders and population-based studies. The Review recommends that additional funding be
allocated to support research into quality of care in residential aged care, including clinical and
quality-of-life determinants of care.
We also recommend that the integrated regulatory data management system proposed in this
chapter be designed to provide researchers with better access to de-identified data. Consideration
should be given to how these data can be linked to datasets held by the Department, including data
on aged care subsidies.
293
Morphett et al., 2014, 'Shortfalls in residents' transfer documentation: Challenges for emergency
department staff' Australasian Emergency Nursing Journal, Vol. 17, pp. 98-105; Somers M. et al., 2010, 'Quality
use of medicines in residential aged care', Aust. Fam Physician, Vol. 39: pp. 413-6.
92
Chapter 6: Better information on quality for
consumers and providers
The Living Longer, Living Better reforms were designed to ensure that aged care service delivery was
focused on consumer needs and preferences. The Aged Care Roadmap, developed by the Aged Care
Sector Committee in 2016, proposed that as the market matured, consumer expectations of care
would drive quality improvement, enabling a commensurate relaxation of regulation.
However, one of the most fundamental underpinnings of a more consumer-focused aged care
market--access to quality information on provider performance--is largely absent in Australian aged
care. This is despite the clearly established relationship between the public availability of quality
information and consumer welfare.294
We appreciate that addressing these issues is not a simple matter. For example, there is
misunderstanding about the uses and limitations of quality indicators and significant risk in using
small sets of indicators to guide consumer choice and performance improvement. This chapter
discusses issues with collecting and sharing performance data and proposes a more nuanced
approach to data sharing that better addresses the objectives described above.
Evidence-based quality indicators
Objective measures of care quality in Australian nursing homes are lacking. We recognise that
quality of care is complex to define, encompassing an array of different aspects of service provision
and consumer perspectives on the care that they experience. Establishing measures that adequately
address this complexity is challenging and, as outlined in chapter four, much attention has been
focused on the development and use of quality indicators in other countries.
Due to the narrow focus of individual quality indicators, suites of indicators are required for a
complete picture of the factors that may contribute to a problem in care quality. The aim of quality
indicator sets is therefore to identify the aspects of care that can benefit from improvement of the
care process and to define performance of individual providers.295
Leading quality of health care researcher Donabedian defines three dimensions of care quality
indicators:296
structure--the context in which care is delivered, including buildings, staff, financing, and
equipment (e.g. staffing levels)
process--the processes of care (e.g. how many medication reviews are conducted)
294
Akerlof, G., 1970, 'The Market for "Lemons": Quality Uncertainty and the Market Mechanism', The
Quarterly Journal of Economics, Vol. 84(3), pp. 488-500.
295
Frijters, D. et al., 2013, 'The calculation of quality indicators for long term care facilities in 8 countries
(SHELTER project)', BMC Health Services Research, Vol.13, p. 138.
296
Donabedian, A., 1988, 'The quality of care: How can it be assessed?', JAMA, Vol. 260 (12), pp. 1743-8.
93
outcomes--the impact of care on patients / residents (e.g. prevalence of dehydration among
residents).
While outcome measures are desirable because they measure the actual impact of care on
residents, there has been a tendency for health and aged care to focus on the use of process-based
quality indicators because they are comparatively easy to measure.
There has also been a tendency for clinical quality indicators to be adopted over quality-of-life
indicators, despite the latter being more meaningful to many residents. The inherent complexity of
defining care quality may explain why regulators focus on "tangible, material, quantifiable
components and overlook the more subjective aspects of service life or 'what it's like' to live in a
service".297 One study demonstrated an association between provider performance against clinical
quality indicators, including hydration, falls and depression, and resident perceptions of quality of
life.298
The US experience with quality indicators
As chapter four outlined, a number of countries have implemented quality indicators to measure
care quality in aged care, but the approach is generally in its infancy. Information on the value of
quality indicators in aged care is largely drawn from the US, which has almost 16 years' experience
with nursing home quality indicators.
In the US, long-stay nursing home performance against 13 quality indicators is publicly reported on
the Nursing Home Compare website. Performance information is drawn from routine data collected
at regular intervals through the minimum data set.299
Much interest in the US experience with quality indicators has centred around whether reporting
performance measures impacts on care outcomes. Research across nine nursing homes in
Mississippi showed a significant impact on resident outcomes and the nursing process through the
introduction of 15 clinical care quality indicators.300 One study also showed that the actions taken by
nursing home administrators in response to publication of quality indicators resulted in
improvement in two of five measures assessed.301 Another study reported that nursing homes made
small improvements in their quality measure scores.302
However, several studies failed to detect significant improvement in care associated with the
collection of quality indicator data. The reasons for variation in the impact of quality indicators are
explored in more detail below.
297
Marquis, R., 2002, 'Quality in Aged Care: A Question of Relational Ethics?, Australasian Journal on
Ageing, Vol. 21(1), pp. 25-9.
298
Courtney et al., 2009, 'Measuring and supporting quality of life', In Nay, R. & Garratt, S. (eds), Older People:
Issues and Innovations in Care, Elsevier, pp. 351-371.
299
Nursing home quality measure resource manual. New England Quality Innovation Network.
http://www.healthcarefornewengland.org/wp-content/uploads/QM-ManualV1-4_042815.pdf
300
Fitzgerald, Shiverick B.N., Zimmerman, D., 1996, 'Applying performance measures to long-term care', Jt
Comm J Qual Improv, Vol. 22(7), pp. 505-517.
301
Mukamel, D. et al., 2008, 'Publication of Quality Report Cards and Trends in Reported Quality Measures in
Nursing Homes', Health Serv. Res, Vol. 43(4), pp. 1244-62.
302
Castle N.G., Liu D., Engberg J., 2008, 'The association of Nursing Home Compare quality measures with
market competition and occupancy rates', Journal of Healthcare Quality, Vol. 20(2), pp. 4-14.
94
Quality indicators in Australian aged care homes
In Australia, there has also been strong consensus support for the implementation of quality
indicators to measure aged care quality and to gauge the performance of quality regulation. Several
critical national reports303 and policy documents304 have recommend the adoption of quality
indicators. There was also support for their adoption in submissions to this Review.
Alzheimer's Australia submitted:305
Quality indicators should be published on the 'My Aged Care' website and should include
relevant information to aid informed decision-making about use of restraint, psychotropic
medications as well as information about staffing and skills mix.
Yet progress on the adoption of quality indicators nationally in Australia has been slow, relative to
the US (Figure 7).
Figure 7. Adoption of quality care indicators in Australia vs the US
303
Campbell Research & Consulting and Department of Health, 2007, Evaluation of the impact of accreditation
on the delivery of quality of care and quality of life to residents in Australian Government subsidised residential
aged care homes; ANAO, 2011, Monitoring and Compliance Arrangements Supporting Quality of Care in
Residential Aged Care Homes, Audit Report No.48 2010-11, p. 32; Productivity Commission, 2011, Caring for
Older Australians.
304
National Aged Care Alliance, 2012, Blueprint for Aged Care Reform; Aged Care Sector Committee, 2016,
Aged Care Roadmap.
305
Alzheimer's Australia submission (ID#11395657).
95
In 2016, the Department commissioned KPMG to pilot three consumer experience and quality-of-life
tools. The trial enrolled 290 nursing homes and received 1,732 consumer responses.306
KPMG's report noted that while the tools were validated, it will take some years before use of the
preferred tool will be adequately implemented in the sector. This delay results from the need to
identify factors that may influence quality indicator measurements (e.g. variation in care
complexity), adjust for these influences, and develop reference thresholds for benchmarking.
A handful of studies paint an encouraging picture of the use of quality indicators in Australia. For
example, a survey of residents and staff of public nursing homes in Victoria in 2010-11307 found that:
residents perceived improvement in care, safety and outcomes when a more proactive approach
was taken by the provider
managers and staff observed improvements in awareness of clinical risk factors and staff skills,
increased awareness of the importance of risk assessments, perceived improvements in quality
of care and a more holistic approach to care.
Another study illustrated the capacity for performance benchmarking against a panel of quality
indicators to identify issues with care quality. The study, benchmarking providers on 23 quality
indicators for 107 residents in four Brisbane nursing homes, found that 60 per cent of residents
assessed in one facility showed signs of dehydration.308
Barriers to the effective application of quality indicators
Research has identified a number of issues that will need to be addressed to ensure the
effectiveness of quality indicators in residential aged care in Australia.
A key determinant of the impact of performance measurement is the attitude of aged care home
management and staff to quality improvement. Several factors are relevant to this, including:
providers and staff see the benefits of the quality indicators that they measure309
aged care homes take a proactive approach to innovation and teamwork310
facility administrators must not dismiss poor-quality indicator scores.311
Other factors that have been shown to influence the responsiveness of providers to issues identified
in care are:
306
KPMG, 2017, Department of Health - key findings and outcomes - National Aged Care Quality Indicator
Program - consumer experience and quality of life pilot outcomes for residential care.
307
Balding, C. and Ibrahim, J., 2009, Quality in Public Sector Residential aged care: Where to from here?
Integrated Quality Projects report, Victorian Department of Health.
308
Courtney M., et al., 2010, 'Benchmarking clinical indicators of quality for Australian residential aged care
facilities', Australian Health Review, Vol. 34, pp. 93-100.
309
Mannion, R., and Goddard, M., 2001, 'Impact of published clinical outcomes data: case study in NHS
hospital trusts', BMJ, Vol. 323, pp. 260-263.
310
Berlowitz, D., et al., 2003, 'Quality improvement implementation in the nursing home', Health Services
Research Vol. 38(1), pp. 65-83.
311
Popejoy L., et al., 2000, 'Improving quality of care in nursing facilities. Gerontological clinical nurse specialist
as research nurse consultant', Journal of Gerontology Nursing, Vol. 26(4), pp. 6-13.
96
Competition between providers in a local area has been shown to be a strong driver for aged
care homes to improve their performance following publication of quality indicators.312
Poor understanding of quality indicators or how to address poor performance can also influence
providers' responsiveness to quality indicator outcomes. Studies have demonstrated that expert
clinical support can help underperforming facilities achieve improvement against quality
indicators.313
Technical issues with collecting and reporting quality indicators
A number of difficulties complicate the collection and application of performance data. They need to
be addressed to ensure that the performance data accurately reflects the care being delivered by a
provider. For example:
Quality indicator scores are sensitive to a variety of external factors, including the complexity of
resident care needs and demographic factors, making risk adjustment and benchmarking
difficult.
Collecting data on some quality indicators can be time-consuming for aged care home staff. The
tendency to select quality indicators that make use of existing data, or require minimal time to
collect, can limit the range and value of quality indicators.
Interpreting quality indicators can be complicated and occasionally the outcomes can be
counter-intuitive. It was observed in the US, for example, that rather than reflecting poor
quality, a high prevalence of pain recorded among aged care home residents was associated
with better pain assessment and treatment care processes.314
Data reliability may be questionable due to reporting errors, as well as poor understanding
among staff of quality indicators and how data is to be collected.315
Insufficient quality indictors in use in Australia
The suite of three clinical quality indicators available through the National Quality Indicator Program,
described in chapter two, is inadequate to provide an accurate assessment of care quality. As
discussed previously, individual clinical indicators examining specific elements of care provide
limited insight into the quality of aged care, with its complex intersection of clinical and psychosocial
requirements. Several commentators have noted the importance of using larger numbers of
measures to assess quality, given the inherent complexity of this subject.316
312
Castle, N.G., Liu, D., Engberg, J., 2008, 'The association of Nursing Home Compare quality measures with
market competition and occupancy rates', Journal of Healthcare Quality, Vol. 20(2), pp. 4-14.
313
Rantz, M., et al., 2001, 'Randomized clinical trial of a quality improvement intervention in nursing homes',
Gerontologist, Vol. 41(4), pp. 525-538.
314
Cadogan, M., et al., 2004, 'A minimum data set prevalence of pain quality indicator: is it accurate and does
it reflect differences in care processes?' J Gerontol A Biol Sci Med Sci, Vol. 59(3), pp. 281-285.
315
KPMG, March 2016, National Aged Care Quality Indicator Program--residential care pilot outcomes.
316
Zimmerman D., et al., 1995, 'Development and testing of nursing home quality indicators', Health Care
Financial Review, Vol. 16, pp. 107-127; Sainfort, F., Ramsay, J., Monato, H., 1995, 'Conceptual and
methodological sources of variation in the measurement of nursing facility quality: an evaluation of 24 models
and an empirical study', Med Care Res Review, Vol. 52, pp. 60-87; Spector, W., Mukamel, D., 1998, 'Using
outcomes to make inferences about nursing home quality', Eval Health Prof., Vol. 21, pp. 291-315.
97
Over-reliance on a small set of quality indicators can create unintended problems that undermine
performance measurement. Some providers may seek to fix the aspects of service that are reported,
but not address broader issues with service quality that quality indicators are intended to identify.
This phenomenon was observed with the UK National Health Service Performance Assessment
Framework.317 There is also a risk that focusing on a small number of quality indicators may
inadvertently result in providers being selective about which residents they accept into a nursing
home.318
There is a risk that providing a narrow snapshot of provider performance may misrepresent the
standard of care delivered in an aged care home. A US study benchmarking the performance of 92
homes against 23 quality indicators found that no facility had quality indicator scores consistently in
the good, average or poor ranges, for all indicators assessed. Moreover, the study found inherent
instability in provider performance against quality indicators, with only 45 per cent of facilities
classified into the same group using two consecutive, six-month periods.319 This means that sampling
bias with a smaller number of quality indicators may portray a false impression of provider
performance.
Improving the measurement of provider performance
The development of a robust set of objective quality indicators should be a priority for future reform
activity.
We note the lack of clarity around the intended scale of the National Quality Indicator Program and
the timeframe for benchmarking and public reporting. If, as has been stated, quality indicators are
intended to serve both as barometers for provider performance and as signals of where problems in
service delivery lie, a much larger set of quality indicators is required. Given the considerable time
required to validate and implement quality indicators, it is essential for a larger panel of indicators to
be piloted now if they are intended to be part of information reporting on care quality in the
foreseeable future.
The Review acknowledges the challenges in obtaining agreement from the aged care sector on
which quality indicators to select and how they will be measured. However, it was noted that
participants in the National Quality Indicator Program pilot expressed interest in expanding the
number of quality indicators being reported; indicators on falls, infections and use of chemical
restraints were proposed.320
We also received feedback that some providers already collect a broader array of quality data as
part of their quality improvement programs. This corroborates an earlier survey of 27 Australian
317
Bevan, G., Hood, C., 2006, 'What's measured is what matters: Targets and gaming in the English public
health care system' Public Administration, Vol. 84(3), pp. 517-538.
318
Mor, V., 2005, 'Improving the quality of long-term care with better information', The Milbank Quarterly,
Vol. 83(3), pp. 333-364.
319
Rantz, M., et al., 2004, 'Stability and sensitivity of nursing home quality indicators', Journal of Gerontology,
Vol. 59A(1), pp. 79-82.
320
KPMG, March 2016, National Aged Care Quality Indicator Program--residential care pilot outcomes.
98
nursing homes, that found that more than 50 per cent of facilities routinely collect data on rates of
infection, falls, skin integrity, polypharmacy, pressure ulcers, continence and doctor's visits.321
This list of priority areas for data collection aligned closely with information gathered in a previous
study of the views of aged care staff and managers regarding the most important aspects of clinical
care to measure.322 Furthermore, three indicators -- falls, hydration and depression -- were
commonly associated with poor resident quality of life. Collectively, this data supports further
examination of other clinical indicators.
We acknowledge that, in some cases, the outcomes of care are not solely within the control of
providers. For instance, pharmacists and general practitioners contribute to medication errors within
aged care homes. However, the judicious use of process- and outcomes-based indicators may help
to address these concerns. For example, measurement of the proportion of residents taking more
than five medications who receive residential medication management reviews would help to assess
medication management, while minimising the impacts of performance risks outside provider
control.
While some providers already collect and analyse data on performance, in our opinion the
development of a standardised approach to measuring performance against key clinical and
psychosocial risk factors is an important step towards reliably assessing the quality of care provided
to aged care residents across the country. This approach will have broader benefits, including
supporting analysis of the impact of new policy initiatives aimed at addressing broader issues with
the quality of residential aged care.
Publication of performance against quality indicators
In our view, quality indicators should not be published as stand-alone performance data or alongside
current accreditation audit reports. The prominence of data on such a limited pool of quality
indicators, in the absence of any other metrics for gauging provider performance, would be
misleading. Instead, we recommend that quality indicator data be published with a broader set of
performance data obtained during accreditation audits. This will provide context to the information
derived from the quality indicators. An approach to expanding information reported on accreditation
outcomes is discussed in further detail in the next section of this chapter.
We acknowledge the need to ensure that quality indicators have been thoroughly validated, data
has been risk-adjusted, and reference thresholds for comparison of provider performance have been
rigorously assessed, before the performance of individual providers is published. Consequently, in
the next three to five years, the principal use of this data will be to inform providers on performance
issues. Work to establish reference thresholds and benchmarking criteria for existing quality
indicators needs to continue in parallel with the validation of additional quality indicators.
321
Courtney M., et al., 2007, 'Development of a systematic approach to assessing quality within Australian
residential aged care facilities: the Clinical Care Indicators Tool', Aust Health Rev. Vol. 31(4), pp. 582-591.
322
Courtney B.M., Spencer L., 2000, 'What's best? Clinical indicators of quality in residential aged care
facilities', Collegian, Vol. 7, pp. 14-19.
99
Mandatory participation in the National Quality Indicator Program
Continuous quality improvement is a critical aspect of Australia's aged care accreditation system.
The Review heard from many providers that consumer-driven competition should drive quality
improvement, and that there should be a corresponding reduction in regulatory control to promote
service innovation. This view is consistent with the Aged Care Roadmap. For this to occur, providers
must furnish the information needed to better inform consumers. Many providers have long
accepted this; however, others see data collection and reporting as onerous. We see a compelling
case for mandatory participation in an expanded quality indicator program, to enable consumer
choice and promote competition. While it is appropriate that pilots of quality indicators involve
voluntary participation of providers, once the value and reliability of these indicators has been
validated, providers should be expected to collect and report data against them.
Education and support to use quality indicators
Studies in the US highlight the need for support for providers and consumers to enable them to
understand quality indicator data.323 Support was also shown to be important in the pilot of three
clinical quality indicators in Australia.324 Once a broader suite of clinical indicators is established,
consideration should be given to the support provided to aged care homes. This should include
establishing a dedicated telephone hotline to answer providers' questions about interpreting,
measuring and reporting quality indicators.
Recommendation 3. All residential aged care services in receipt of Commonwealth funding
must participate in the National Quality Indicators Program.
Actions
(i) The Commission will develop and pilot an algorithm to support performance
benchmarking.
(ii) The Commission will provide residential aged care facilities with a 'performance
card' comparing them to services with similar profiles.
(iii) The Commission will pilot and validate additional clinical and consumer experience
quality indicators.
A star-rated system for reporting of provider
performance
Ensuring that information for consumers about provider performance is available in a format that is
easily understandable is critical to supporting their choice of a service provider. At present,
information on the quality of care in aged care homes does not achieve this objective.
323
Rantz M.J., et al., 2012, 'Randomized multilevel intervention to improve outcomes of residents in nursing
homes in need of improvement', J Am Med Dir Assoc., Vol. 13, pp. 60-8.
324
KPMG, March 2016, National Aged Care Quality Indicator Program--residential care pilot outcomes.
100
The Quality Agency publishes summary reports of the accreditation audits that it conducts at each
residential aged care home. These provide information on whether the home was accredited,
whether each of the 44 outcome measures were met or not met, and a brief summary of the
reasons for the decision. However, this approach to reporting does not enable consumers to easily
compare the quality of residential aged care services.
In its submission to this Review, Alzheimer's Australia noted:
Although the accreditation status of a residential aged care facility is publicly available,
consumers often report to us that they find the documents difficult to interpret and that
there is a lack of transparency as to how that relates to quality of care ... Ultimately, it is vital
that accreditation and quality mechanisms span consumer experience and quality of life
within aged care services and that they are reported in a way that is both accessible and
meaningful to consumers.325
To improve the accessibility of information on the quality of care, the Quality Agency recently
launched a new consumer experience report. The report is being used to collect the views of
consumers and their families on aspects of care including food, safety, emotional and physical care,
support for independent living, follow-up by staff, communication and respectful care.326
Respondents are asked to indicate whether each aspect of care meets their expectations 'always',
'most of the time', 'some of the time' or 'never'. These reports are published along with
accreditation reports on the Quality Agency's website. However, the new reports do not include
information captured during audits.
Providing data in a format that consumers are able to use effectively can influence provider
behaviour, creating incentives for performance improvement.
Lessons from the US
A number of countries, including Germany, Korea, Sweden and the US, publish reports on aged care
providers along with grading of their performance. The US has grappled with similar challenges with
performance reporting as Australia over the past two decades. Research on the impacts of the US
approach is instructive in considering how to manage information sharing in Australia.
The publication of performance data has had a significant impact on provider behaviour in the US.
Studies have demonstrated the improvement of care outcomes following publication of report cards
on quality indicators on the Nursing Home Compare website.327 The results in the US mirror
325
Alzheimer's Australia submission (ID#11395657).
326
AACQA, 'New report focuses on the resident experience in aged care'. Media release 18 August 2017.
https://www.aacqa.gov.au/about-us/mediarelease18August2017final.docx
327
Fitzgerald, R.P., Shiverick, B.N., Zimmerman, D., 1996, 'Applying performance measures to long-term care',
Jt Comm J Qual Improv, Vol. 22(7), pp. 505-517; Mukamel D.B. et al., 2008, 'Publication of Quality Report
Cards and Trends in Reported Quality Measures in Nursing Homes', Health Serv. Res, Vol. 43(4): pp. 1244-62;
Castle, N.G., Liu, D., Engberg, J., 2008, 'The association of Nursing Home Compare quality measures with
market competition and occupancy rates', Journal of Healthcare Quality, Vol. 20(2), pp. 4-14; Zinn, J. et al.,
2005, 'Do trends in the reporting of quality measures on the nursing home compare web site differ by nursing
home characteristics?' Gerontologist, Vol. 45(6), pp. 720-30.
101
improvements in performance outcomes in German nursing homes after the introduction of report
cards on care quality.328
A modest additional effect on provider behaviour has been observed following the transition, in
2008, by the Centre for Medicare and Medicaid to a 5-star graded reporting system about provider
performance. One study found that after its introduction, there was a significant decrease in the use
of physical restraint by nursing homes that had received lower performance ratings.329
The graded reporting system also influenced consumer choice. One study observed that, not
surprisingly, the introduction of the 5-star reporting system led to a significant decrease in consumer
demand for 1-star homes and a commensurate increase in demand for 5-star facilities.330
However, it is not clear to what extent reported data on provider performance reflect consumer
views of the care delivered in each facility. A 2012 study reported that there was no correlation
between family experiences of care and scores for quality outcomes captured in the National Home
Care report cards.331 Likewise, another study found poor correlation between star ratings and
consumer satisfaction scores in Ohio.332 Also, use of the Nursing Home Compare site333 and similar
health websites334 has been impacted by poor awareness of their existence and distrust of the data.
Issues with Australia's performance reporting system
Unlike the US, Australia's performance reporting system does not consolidate data from
accreditation audits, quality indicators and consumer feedback to provide a simple-to-understand
appraisal of provider performance. The segregation and complexity of information makes it difficult
for people to compare residential aged care homes.
There are also significant issues with the currency of data used to inform selection of a home:
COTA believes however that with changing of staff the culture of facilities can change within
a very short timeframe. Accordingly, COTA believes there should be an annualised collection
of the consumer experience report for each residential facility, to ensure the views are
current and of relevance to consumers looking to understand the views of other residents
328
Herr, A., Nguyen, T., Schmitz, H., 2016, 'Public reporting and the quality of care of German nursing homes',
Health Policy, Vol. 120(10), pp. 1162-70.
329
Clement, J., Bazzoli, G., Zhao, M., 2012, 'Nursing home price and quality responses to publicly reported
quality information', Health Serv Res, Vol. 47(1 Pt 1), pp. 86-105.
330
Werner, R., Konetzka, R., Polsky, D. et al., 2009, 'Impact of public reporting on quality of postacute care',
Health Serv Res; Vol. 44(4), pp. 1169-1187.
331
Çalıkoglu, Ş., Christmyer, C., Kozlowski, B., 2012, 'My eyes, your eyes--the relationship between CMS
five-star rating of nursing homes and family rating of experience of care in Maryland', J Healthc Qual., Vol.
34(6) pp. 5-12.
332
Williams, A., Straker, J., Applebaum, R. 2016, 'The nursing home five star rating: how does it compare to
resident and family views of care?' Gerontologist, Vol. 56(2), pp. 234-42.
333
Konetzka, R., Perrallion, M.C., 2016, 'Use of nursing home compare website appears limited by lack of
awareness and initial mistrust of the data', Health Aff. (Millwood); Vol. 35(4), pp. 706-13.
334
Marshall, M., et al., 'The public release of performance data: What do we expect to gain?' JAMA, Vol.
283(14), pp. 1866-74.
102
prior to entering a residential aged care service It is clear to us that potential residents will
heavily discount information that is not perceived as current.335
Accreditation audit data is also generally collected on a three-year schedule, which compromises its
currency.
Improving performance reporting in Australia
We believe that better use can be made of the extensive data captured through accreditation audits
and consumer feedback. We commend the work done by the Quality Agency to develop consumer
experience reports that collect graduated responses from residents and their families against
questions that align with key topics of interest to consumers. However, we note the missed
opportunity to supplement this with similar information from accreditation reports.
We propose the development of a star-rated reporting system for performance data that
incorporates the results from accreditation audits and consumer experience reports. We envisage
scores against each Accreditation Standard, with an overall score provided for each facility.
To support this system, accreditation audit reports should include graduated scores against all
outcome measures. This approach will provide richer data on provider performance that
differentiates high-performing providers and incentivises quality improvement.
The new Aged Care Commission should also develop a web tool that enables consumers to quickly
compare the performance of aged care homes in a chosen area.
Once quality indicators have been validated, they could be incorporated into this reporting
structure. If reported as part of a broader set of data, quality indicator data can provide context to
the findings of audit reports and consumer experience reports. This approach will also serve to
mitigate the risks of publication of data on small numbers of quality indicators.
We recommend that the Aged Care Commission undertake a review of the new system within three
years of its implementation by surveying consumer and provider views on the usefulness,
comprehensibility and reliability of the data presented. The review should also investigate the extent
to which performance scores align with resident and family experiences of care.
Recommendation 4. The Aged Care Commission will implement a star-rated system for
public reporting of provider performance.
Actions
(i) Residential aged care services rated against key domains
(ii) Adopt mandatory reporting of provider performance against quality indicators
(iii) Publish accessible, plain English residential service performance reports on My
Aged Care website (in one place)
(iv) Develop tools to enable consumers to compare the performance of residential
services in an area.
335
COTA Australia submission (ID#743548634).
103
104
Chapter 7: Better support and protection for
consumers
It is essential for aged care consumers to have confidence in the regulatory system and to be aware
of, and able to exercise, their rights. We believe more needs to be done to empower consumers and
their representatives.
We also need better protection of residents in aged care facilities. This includes improved systems to
prevent abuse and neglect, and to report serious incidents and the response to them. As Australian
Human Rights Commissioner Brian Burdekin noted in 1993: "[The] system often ignores elderly
people who are mentally ill, or assigns them the lowest priority ... Neglecting the physical health
needs of old people is a form of elder abuse."336
The use of restrictive practices does, in some circumstances, constitute elder abuse. Restrictive
practices can deprive people of their liberty and dignity. Standards need to provide safeguards to
limit restrictive practices and allow them to be used only when absolutely necessary.
Support for consumers to exercise their rights
In 1991, the United Nations General Assembly adopted 18 principles for older persons.337 The
principles include:
Older persons should be able to enjoy human rights and fundamental freedoms when residing
in any shelter, care or treatment facility, including full respect for their dignity, beliefs, needs
and privacy and for the right to make decisions about their care and the quality of their lives
(Principle 14).
Older persons should be able to live in dignity and security and be free of exploitation and
physical or mental abuse (Principle 17).
These principles find expression in the Charter of Care Recipients' Rights and Responsibilities in
residential care, legislated for in the Aged Care Act. Specified rights included the right to "quality
information appropriate to his or her needs", "to be treated with dignity and respect", "to complain
and to take action to resolve disputes", "to have access to advocates and to other avenues of
redress" and "to be free from reprisal, or a well-founded fear of reprisal, in any form for taking
action to enforces his or her rights".
Awareness of the Charter appears to be low. Unlike parts of the health sector, a culture of 'provider
knows best' continues to prevail in the aged care sector, with many people unaware of their rights
or too afraid to exercise them.
336
Burdekin, B., 1993, Human rights and mental illness, Australian Government Publishing Service.
337
http://www.ohchr.org/EN/ProfessionalInterest/Pages/OlderPersons.aspx
105
Aged care residents have the same general consumer rights as everyone has in the broader
economy, protected under consumer law and contract law. In aged care, this is particularly
important, as most residents are cared for under a resident agreement, which is a legal contract. As
with the Charter, there is a lack of awareness of the legal right to appropriate treatment conferred
by resident agreements.
We agree with the observation of one respondent, that it was "confronting" to read the Oakden
report in 2017, and that it "shares aspects with the Burdekin Report" from nearly a quarter of a
century earlier.338 The abuse and neglect of basic human rights detailed in the Oakden report has
many disturbing echoes of the treatment of mental health patients recorded by the Australian
Human Rights Commission in the Burdekin report in 1993.
The Aged Care Commission should include advocacy on behalf of consumers to protect and advance
their rights in the functions of the Consumer Commissioner. This has several dimensions:
Systemic advocacy
Provider awareness and training
Individual advocacy.
Systemic advocacy involves advocating across the aged care system for reforms that promote
consumer rights. The role of the Consumer Commissioner can build on the experience of other
advocacy systems undertaken by organisations in different fields. For example, the Public Advocate
in the ACT undertakes systemic advocacy. This means it works to:
introduce and influence positive long-term changes to systems that support and respond to
the needs of the community, including: the legislative, policy and practice environments that
they operate in, ensure that the rights and interests of people experiencing vulnerability are
upheld, promote improved opportunities and outcomes, ensure the issues and experiences of
individuals inform the focus of our work.339
Similarly, the national Children's Commissioner performs functions that include:
to promote discussion and awareness of matters relating to the human rights of children in
Australia; to undertake research, or educational or other programs, for the purpose of
promoting respect for the human rights of children in Australia, and promoting the
enjoyment and exercise of human rights by children in Australia.340
Promotion and protection of the rights of consumers in aged care will include some of these kinds of
activities. In addition, the new role can draw on the model for systemic advocacy used by the Age
Discrimination Commissioner, whose brief "includes research, policy advice and education initiatives
that tackle the attitudes and stereotypes that can lead to age discrimination".341
338
Submission (ID#805671192).
339
ACT Human Rights Commission, Systemic advocacy, http://hrc.act.gov.au/public-advocate/systemic-
advocacy/
340
Australian Human Rights Commission Act 1986, s. 46MB(1).
341
Australian Human Rights Commission, About age discrimination, https://www.humanrights.gov.au/our-
work/age-discrimination/about-age-discrimination. The Consumer Commissioner will have a brief that is
106
Systemic advocacy to support consumer rights will be strengthened through partnership with the
Complaints Commissioner, bringing together data and analysis from different areas of consumer
engagement by the Aged Care Commission, to identify areas where consumer rights need support.
A second dimension to protecting consumer rights is that aged care providers need to be aware of
those rights, and to support their residents in exercising them. The Consumer Commissioner can
lead education and awareness in this area. OPAN noted in its submission:
The introduction of [an] education program actively promoting the roles and responsibilities
of the ACCC, AACQA and the National Aged Care Advocacy Program (NACAP) so that both
consumers and service providers understand the continuum of safeguards available to
address concerns in an appropriate and timely manner. In OPAN's experience, service
providers, consumers and their carers/representatives are often confused about the varying
roles of each of these organisations and how they interact with one another.342
Existing aged care legislation contains provisions that require providers to inform consumers about
aspects of their rights, such as the requirement under the User Rights Principles that the provider
"must give a care recipient information about the care recipient's rights and responsibilities in
relation to the service under the Charter".343 However, residents must be able to exercise their rights
in practice.
Training can help staff understand residents' rights (including the right to advocacy) and staff
responsibilities. Access to this training should be supported by government, so it is not a cost to aged
care providers.
A third dimension to effective protection of consumer rights is individual advocacy. As noted in
chapter four, an effective regulatory system needs to provide advocacy services for individuals who
need support to exercise their rights in the aged care system. Our analysis concluded that Australia
has a relatively effective individual advocacy system, operating under the National Aged Care
Advocacy Program. Advocacy provider OPAN explained:
The services focus on supporting older people and their representatives to raise and address
issues relating to accessing and interacting with Commonwealth funded aged care
services ... OPAN organisations offer advocacy services that are rights based. They seek to
ensure that aged care consumers understand and exercise their rights and participate, to the
maximum degree possible, in the decisions affecting their care. OPAN organisation
advocates ... act at the consumer's direction.344
narrower than that of the Age Discrimination Commissioner, who responds specifically to complaints about
age discrimination under the Age Discrimination Act 2004. The Age Discrimination Commissioner deals with all
age-related discrimination, including for example in relation to children; the Consumer Commissioner's brief is
obviously only for older Australians, and only on issues within the aged care system. However, we envisage a
broader role, advancing all the rights of people in aged care, not only the right to be free of discrimination.
342
OPAN Submission (ID#1721685255).
343
User Rights Principles 2014, s.11.
344
OPAN Advocacy Services, http://www.opan.com.au/advocacy/#what_is_advocacy
107
We have made recommendations to ensure that greater prominence is given to the rights of
residents in aged care residential homes. Leadership in education should be provided by the new
Consumer Commissioner within the Aged Care Commission, working alongside the Complaints
Commissioner to educate the public and providers about consumers' rights. Residential aged care
facilities should be required to educate residents and their representatives about consumers' rights,
and to ensure that all staff undertake OPAN training on consumers' rights regularly.
Recommendation 5. The Aged Care Commission will support consumers and their
representatives to exercise their rights.
Actions
(i) The Consumer Commissioner, in partnership with the Complaints Commissioner,
will promote and protect consumer rights.
(ii) All approved providers must inform and educate consumers and their
representatives about consumer rights.
(iii) All approved providers must ensure all staff undertake regular Older Persons
Advocacy Network education on consumer rights.
Protecting aged care residents from abuse and neglect
Evidence to this Review and previous inquiries suggests that the current regulatory environment
does not adequately protect the residents of aged care homes from abuse and neglect. The
accreditation system does not appear to be sufficiently robust, and the requirement for compulsory
reporting is restrictive and of limited value in improving the safety of residents.
In 2016-17, there were 2,853 notifications of 'reportable assaults' to the Department. Of these,
2,463 were recorded as alleged or suspected unreasonable use of force, 348 as alleged or suspected
unlawful sexual contact, and 42 as both. This represents an incidence of reports of suspected or
alleged assaults of 1.2% of people receiving permanent residential care during that period.345
Providers are obliged to report allegations or suspicions of reportable assaults to the Department.
The reporting requirement was enacted through amendments to the Act346 and commenced on 1
July 2007.
The Department, the Quality Agency and the Complaints Commissioner have separate
responsibilities in relation to reports of alleged or suspected assault in aged care services. The
Department and the Quality Agency are responsible for monitoring provider compliance with their
reporting responsibilities and ensuring that providers have systems and processes in place to
respond appropriately to reports of alleged assault. The Complaints Commissioner is responsible for
resolving complaints in relation to assault and ensuring that providers have responded
appropriately.
345
Department of Health, 2016-17 Report on the operation of the Aged Care Act 1997.
346
Part 4.3, s. 63-1AA.
108
Requirement to report allegation or suspicion of a reportable assault
As mentioned in chapter two, providers of residential care are required to report all allegations or
suspicions of reportable assault to the police and the Department within 24 hours of receiving the
allegation or from when they start suspecting, on reasonable grounds, a reportable assault. This
includes unlawful sexual contact or unreasonable use of force.347 The report to the Department
provides information about the incident.
Reporting requirements are designed to protect vulnerable residents from unlawful sexual contact
from a person who is not another resident, not to restrict their sexual freedoms. Reports are
sometimes made on the basis that a third party or relative is uncomfortable with the sexuality or
sexual freedom of a resident. These situations are difficult for providers, but where there is a
consensual relationship between a resident and another person who is not a carer, it is not
considered assault. It is particularly difficult in cases involving residents with cognitive impairment
that may impinge the ability to give consent.
Unreasonable use of force ranges from deliberate and violent physical attacks on residents to the
use of unwarranted physical force. The latter may include hitting, pushing or kicking a resident,
regardless of whether this causes visible harm.
Providers are not obliged to report to the Department an allegation or suspicion of a reportable
assault, if they meet the following four requirements:348
1. Within 24 hours of the provider becoming aware of the allegation or the suspicion, the provider
forms an opinion that the assault was committed by a resident to whom they provide care.
2. That prior to receiving the allegation or suspicion of assault, the resident who committed or is
alleged to have committed the assault was assessed by appropriate health professionals as
suffering from a cognitive or mental impairment.
3. Within 24 hours of the receipt of the allegation or suspicion of assault, the provider has put in
place effective arrangements to manage the resident's behaviour.
4. Records are held to support the assessment of the resident's cognitive or mental impairments,
and to show the arrangements put in place to manage the resident's behaviour.
In such cases, providers are instead required to put in place responses that focus on effective
behaviour management. This approach enables cases involving residents with a cognitive or mental
impairment to be clinically managed, where this is the most appropriate response.
347
Department of Health, Guide for reporting reportable assaults, https://agedcare.health.gov.au/ensuring-
quality/aged-care-quality-and-compliance/guide-for-reporting-reportable-assaults
348
As described in the reportable assault report form: https://agedcare.health.gov.au/ensuring-quality/aged-
care-quality-and-compliance/compulsory-reporting-for-approved-providers/reportable-assaults-report
109
Figure 8. Reportable assault flowchart for residential aged care349
349
Department of Health, Reportable assault flowchart,
https://agedcare.health.gov.au/sites/g/files/net1426/f/documents/07_2017/reportable_assault_flowchart_jul
y.pdf
110
Regulatory response to compulsory reports
The information provided to the Department in relation to a reportable assault is recorded and may
be used as part of the Department's ongoing regulatory functions under the Act. The Department
may take compliance action where approved providers do not meet the compulsory reporting
requirements under the Act. The investigation of alleged or suspected assault is the responsibility of
the police.
The Quality Agency assesses a residential home's compliance with the Accreditation Standards
through its usual monitoring and accreditation processes. This includes an approved provider's
compliance with its regulatory responsibilities, specifically:
that processes are in place to encourage staff to report allegations or suspicions of incidents
of assault on a resident
that the provider is keeping records of all incidents of assault
whether the provider met the conditions for not reporting an incident of assault.
The Quality Agency uses this information in conjunction with existing intelligence to determine
whether an assessment contact visit is warranted, and to review whether systems and processes are
appropriate to safeguard resident safety and appropriate actions have been taken. The Department
may take compliance action where approved providers do not meet the Accreditation Standards.
The Department shares monthly data on all reports of alleged or suspected assault with the Quality
Agency and the Complaints Commissioner. This data enables the agencies to build intelligence in
relation to a provider's response and compliance with reporting requirements.
Does the compulsory reporting scheme provide adequate safeguards?
While some may argue that the legal requirement to comply with aged care Accreditation Standards
is enough to demonstrate appropriate responses to serious incidents, our enquiries during this
Review suggest this is not the case. The events at Oakden indicate that the current accreditation
system is not sufficiently robust to provide adequate safeguards for residents who may have been
subject to abuse and neglect. This is alarming considering significant investments by all governments
to secure the human rights of people living with mental illness in light of the Burdekin report in
1993, which noted that "dementia, like other mental illnesses, can be managed successfully without
compromising protection of human rights".350
The Aged Care Act is a weak framework for promoting the rights of older people, including the right
to be free from abuse and exploitation, since it only provides for the reporting of serious physical
and sexual assaults. The requirement of reporting to police can lead to a belief that nothing more
needs to be done, since the matter is in the hands of the police. There is a sense from individual
submissions that the process following on from the obligatory report is flawed. People are left in the
dark.
350
Burdekin, B., 1993, Human rights and mental illness. Australian Government Publishing Service.
111
In its June 2017 report into elder abuse, the Australian Law Reform Commission (ALRC) pointed out
that the reportable assault provisions place no responsibility on the provider other than to report an
allegation or suspicion of an assault.351 Significantly, there is no legislative obligation on the provider
to record any actions taken in response to an incident.
Submissions to the ALRC inquiry were critical of the existing compulsory reporting scheme, claiming
there is little evidence that the reporting requirements to the Department are effective in protecting
residents. This view was corroborated in submissions to this Review:
With the Department of Health the cryptic reporting on reportable assaults should be
replaced with substantial information on what happened following the reporting of an
alleged assault such as what action was taken, how many were substantiated and did any
penalties result. If there were nearly 3,000 alleged assaults against primary school children
we would not accept a couple of lines in an annual report as the limit to public information
on the matter.352
And:
CPSA urges the reviewers to consider the recommendations for change in the aged care
space made by the ALRC's part of the inquiry into Elder Abuse. In particular, CPSA is keen to
see reform of the reportable assaults scheme ... 353
Improving the response to serious incidents of abuse and neglect
Peak aged care consumer groups support the ALRC recommendation for a new serious incident
response scheme (SIRS) for aged care with oversight by an independent body. 354
We endorse this, and propose that the new Aged Care Commissioner oversee the new SIRS. This
scheme should replace the current responsibilities in relation to reportable assaults in the Act.
We propose that the Aged Care Commission keep under scrutiny the systems of aged care providers
for preventing, handling and responding to reportable incidents involving residents in aged care
services. An aged care provider must give the Aged Care Commissioner notice as soon as possible, or
within 28 days, of a reportable incident of which the provider becomes aware. The Aged Care
Commissioner will determine whether appropriate action has been taken. as a result of the
investigation.
Replacing the current statutory scheme with a new reportable incidents scheme would contribute to
a strengthened legal framework and allow the provider to take a proportionate, considered
response to the incident.
351
Australian Law Reform Commission, 2017, Elder abuse--a national legal response, ALRC report 131,
Commonwealth of Australia, p. 112.
352
Elder Care Watch submission (ID#322319626).
353
Combined Pensioners and Superannuants Association (CPSA) submission (ID#360932844).
354
COTA Australia submission (ID#743548634); Alzheimer's Australia submission (ID#11395657); Combined
Pensioners and Superannuants Association (CPSA) submission (ID#360932844); Elder Care Watch submission
(ID#322319626).
112
To further enhance the transparency and accountability of providers in responding to reportable
incidents, consideration should be given to requiring providers to report the number of alleged or
suspected reportable incidents that have occurred in their service on a monthly or quarterly basis to
residents and their representatives, and to making the information publicly available.
Defining a serious incident
The ALRC recommends broadening the types of incidents to be reported in residential care to mean,
when committed against a resident:355
(i) physical, sexual or financial abuse
(ii) seriously inappropriate, improper, inhumane or cruel treatment
(iii) unexplained serious injury
(iv) neglect.
The ALRC also recommends that incidents of violence between residents in residential aged care
should be treated as serious incidents, whether or not the person committing the act is cognitively
impaired:
This approach better calibrates the level of oversight appropriate to the management of
violence between residents, and is consonant with a sector-wide commitment to ensuring that
aged care recipients live in an environment free of violence and abuse. Responses to such
incidents should be contemporaneously monitored, particularly where such responses may
involve the use of restrictive practices.356
Alzheimer's Australia supports this approach, noting:
... aggression exhibited by people with dementia does not constitute criminal abuse; but the
challenges posed by these situations are acknowledged. We recommend that all incidents of
assault, including assaults perpetrated by a person with cognitive impairment be reported
within 24 hours.357
A draft report released by Monash University's Health, Law and Ageing Research Unit recommends
extending the current mandatory reporting requirements to include all types of aggressive incident
regardless of the cognitive status of residents involved:
As the number of RACS residents with dementia in aged care rises, it is not practical to
continue to exclude these cases in reporting. Targeted prevention strategies to reduce
[resident to resident aggression] require accurate information on the incidences and the
residents involved.358
355
Australian Law Reform Commission, 2017, Elder abuse--a national legal response, ALRC report 131,
Commonwealth of Australia, pp. 119-120.
356
Australian Law Reform Commission, 2017, Elder abuse--a national legal response, ALRC report 131,
Commonwealth of Australia, p. 123.
357
Alzheimer's Australia submission (ID#11395657).
358
Ibrahim, J., (ed.), 2017, Recommendations for prevention of injury-related deaths in residential aged care
services [draft], Health Law and Ageing Research Unit, Department of Forensic Medicine, Monash University.
113
Overall, we consider the ALRC extended definition of 'serious incident' appropriate, but note that
there would need to be clear definitions to assist providers to understand any expanded reporting
requirements. We note that fraud and financial abuse is not an area for which the Health portfolio
currently has responsibility, and that the nature of investigations that could be conducted by the
Aged Care Commission would need to be considered.
We also agree that all incidents of assault, including those committed by a resident with a cognitive
impairment, should be reported to help ensure appropriate actions are being taken to provide care
for and protection of residents, including those with severe dementia.
The Aged Care Commission should develop guidance with appropriate definitions, in consultation
with experts and stakeholders, to assist residential aged care homes to understand what constitutes
abuse. We believe that the overarching aim is to build organisational cultures that do not condone
abusive conduct. We support the ALRC suggestion to model this guidance on the NSW Ombudsman
Guide for Services.359
Recommendation 6. Enact a serious incident response scheme (SIRS) for aged care.
Actions
(i) The SIRS will require approved providers to inform the Aged Care Commission of:
(a) an allegation or a suspicion on reasonable grounds of a serious incident; and
(b) the outcome of an investigation into a serious incident, including findings and
action taken.
(ii) The Aged Care Commission will monitor and oversee the approved provider's
investigation of, and response to, serious incidents, and will be empowered to conduct
investigations of such incidents.
Protecting aged care residents from restrictive
practices
The current use of restrictive practices to manage difficult behaviours within residential aged care
facilities is a matter of grave concern to this Review. Using restrictive practices on residents, whether
physical or chemical, is a human rights issue, and the use of alternative means for behaviour
management should become the norm in aged care facilities.
We recommend that the Aged Care Commission work closely with the residential aged care sector to
significantly reduce the use of all restrictive practices. The elimination of restrictive practices is a
goal that both government and providers should aspire to.
Most people with dementia experience some behavioural or psychological symptoms of dementia
(BPSD) of varying severity at some time during the course of their illness.
359
NSW Ombudsman, 2016, Guide for services: reportable incidents in disability supported group
accommodation.
114
People may suffer mild symptoms of BPSD, such as apathy and repetitive questioning, or moderate
symptoms such as calling out, disturbed sleep, socially inappropriate behaviour, hallucinations and
delusions. More serious symptoms can include marked agitation and aggression. A small minority of
people have very severe acute psychiatric disturbance and may be dangerously aggressive.360 The
cause can be varied, with most behaviours transient in nature, although some behaviours, including
agitation, can persist.
The use of restrictive practices to manage challenging behaviours of residents in aged care services
has been described as a human rights issue in Australia.361 In this context, restrictive practices can
mean physical or mechanical restraint (e.g. tied to a chair, restrained to bed by bed rails), chemical
restraint (e.g. use of antipsychotic medication), and seclusion. Other forms of restraint include
restricted access to objects, or electronic forms of restraint (fitting tracking bracelets, camera
surveillance or restrictions on media devices).362
The Oakden report confirmed that the current regulatory mechanisms failed to protect residents,
many whom had dementia with severe or very severe BPSD, from excessive use of restrictive
practices. Among other things, Groves found heavy reliance on medication and mechanical restraint
to manage behaviours. The ALRC notes that " ... the use of restrictive practices will, in some
circumstances, be elder abuse. [It] can deprive people of their liberty and dignity--basic legal and
human rights."363
In its 2016 report on indefinite detention in Australia of people with cognitive and psychiatric
impairment, the Senate Community Affairs References Committee discussed the use of involuntary
treatments and restrictive practices, noting that such use "can be viewed as indefinite detention in
the disability and aged care context."364 In its concluding comments, the Committee noted:
It is clear from the evidence provided that indefinite detention of people with cognitive or
psychiatric impairment is a significant problem within the aged care context, occurring both
within external facilities and private homes. It is also clear this detention is often informal,
unregulated and unlawful.365
The stark reality is that restrictive practices are often used in human service settings on the most
vulnerable and disempowered people. This is explained and justified as protecting the restrained
person or others from harm during episodes of 'challenging behaviours', such as striking themselves
or other people or wandering. However, it may also be being used as a "means of coercion,
360
Brodaty, H., Draper, B., Low, L.F., 2003, 'Behavioural and psychological symptoms of dementia: a seven-
tiered model of service delivery', Med J Aust., Vol. 178, pp. 231-234.
361
ALRC, Queensland Office of the Public Advocate, 2017, Legal frameworks for the use of restrictive practices
in residential aged care: an analysis of Australian and international jurisdictions.
362
ALRC, Queensland Office of the Public Advocate, 2017, Legal frameworks for the use of restrictive practices
in residential aged care: an analysis of Australian and international jurisdictions.
363
ALRC: 'Elder Abuse - A National Response'; 2017 p.251
364
Senate Community Affairs References Committee, 2016, Indefinite detention of people with cognitive and
psychiatric impairment in Australia, p.153.
365
Senate Community Affairs References Committee, 2016, Indefinite detention of people with cognitive and
psychiatric impairment in Australia, p.169.
115
discipline, convenience or retaliation by staff or others providing support, when aged care facilities
are understaffed."366
There are many studies indicating that the use of restrictive practices is an ineffective method to
manage challenging behaviour and may cause physical or psychological harm.367 A recent study
reported that there were five deaths as a result of physical restraint in Australian residential aged
care facilities over a 13-year period.368 However, the absence of a central reporting body collecting
information on the prevalence of restraint use means we do not know the proportion of serious
injuries from restraint practices. To put it simply:
We need to know how many people are actually restrained in any way and talk about
whether that's acceptable, rather than turning a blind eye or rationalising by saying that
we're acting in the person's interest, and their best interest is to stop them walking because
they might fall.369
Inappropriate use of antipsychotic medicines
The use of antipsychotic drugs as a restrictive practice to control behaviour in residents with
dementia may be inappropriate for several reasons. First, there is evidence of their limited
effectiveness in treating certain symptoms of dementia. Second, there is at times an over-reliance
on using antipsychotics as a first line of response, missing other needs of the resident. Overuse of
antipsychotic drugs may be the result of a 'quick-fix' mentality, reflecting an organisational culture
that is not centred on the resident, or lack of training, qualified staff or other resources. There is also
evidence that antipsychotic drugs are administered without informed consent in some cases.
Limited effectiveness of antipsychotic drugs
In any discussion about the use of antipsychotics in residential care, it is important to acknowledge
that some residents with dementia may have severe mental health conditions, while others have a
long-term mental illness where the use of antipsychotics is appropriate and important to their
treatment.
There is evidence that some drugs are effective for treating psychosis or agitation and aggression in
people with dementia and severe BPSD.370 However, antipsychotics have been shown to be of
limited effect in treating most behavioural and psychological symptoms of dementia.371 For every
366
Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, 2016, Elder
abuse in New South Wales, p. 71.
367
Legislative Council General Purpose Standing Committee No 2, Parliament of New South Wales, 2016, Elder
abuse in New South Wales, p. 71.
368
Bellenger, E., et al., 2017, 'Physical restraint deaths in a 13-year national cohort of nursing home residents',
Age and Ageing, Vol. 46(4), pp. 688-693.
369
MJA Insite 30 January 2017, https://www.doctorportal.com.au/mjainsight/2017/3/harms-of-restraints-
outweigh-benefits/?utm_source=MJA+InSight&utm_campaign=4ddd788e60-
EMAIL_CAMPAIGN_2017_01_27&utm_medium=email&utm_term=0_7346f35e23-4ddd788e60-42211297
370
National Health and Medical Research Council Cognitive Decline Partnership Centre Guideline Adaptation
Committee, 2016, Clinical practice guidelines and principles of care for people with dementia.
371
Best Practice Advisory Centre, 2011, 'Prescribing atypical antipsychotics in general practice', Best Practice
Journal, Vol. 40, pp 14-23.
116
100 people with dementia given an antipsychotic, only 20 will derive some clinical benefit.
Moreover, there will be one extra death and one extra stroke,372 and current evidence does not
support their use for the prevention or treatment of delirium.373
The 2016 Clinical practice guidelines and principles of care for people with dementia374 provide an
up-to-date and comprehensive summary of the evidence and recommended actions that provide
alternatives to antipsychotics.
Non-pharmacological interventions are increasingly being shown to be effective without side effects,
but with challenges implementing and identifying methods with sustained effects.375
The 'quick fix' of antipsychotics
In 2015, the Australian Commission on Safety and Quality in Health Care (ACSQHC) released the
Atlas of healthcare variation (the Atlas), which examined dispensing rates of antipsychotic medicines
for people aged 65 and over from the Pharmaceutical Benefits Scheme.376 Prescription rates were
particularly high for this age group, with a rate of 27,043 prescriptions per 100,000 people.
Studies have highlighted the high, variable and increasing levels of prescribing antipsychotics for use
in the management of BPSD in Australia,377 particularly in residential care facilities, where over half
the residents have a formal diagnosis of dementia. Data suggest up to one third of residents are
prescribed antipsychotics.378
372
Banerjee, S., 2009, The use of antipsychotic medication for people with dementia: time for action. A report
for the Minister of State for Care Services.
373
Kishi, T., 2016, 'Routine use of antipsychotics to prevent or treat delirium is not recommended'. Evidence-
Based Mental Health, Vol. 9(4), p. 123.
Neufeld, K.J., et al., 2016, 'Antipsychotic medication for prevention and treatment of delirium in hospitalized
adults: a systematic review and meta-analysis', Journal of the American Geriatrics Society, Vol. 64, pp. 705-
714.
374
National Health and Medical Research Council Cognitive Decline Partnership Centre Guideline Adaptation
Committee, 2016, Clinical practice guidelines and principles of care for people with dementia.
375
Richter, T., 2012, 'Psychosocial interventions for reducing antipsychotic medication in care home residents',
Cochrane Database of Systematic Reviews, Issue 8, Article No. CD008634; Chenoweth, L., et al., 2009, 'Caring
for aged dementia care resident study (CADRES) of person-centred care, dementia-care mapping, and usual
care in dementia: a cluster-randomised trial', Lancet Neurol, Vol. 8, pp. 317-325; Brasure, M., et al., 2016,
Nonpharmacologic interventions for agitation and aggression in dementia, Comparative Effectiveness Reviews,
No. 177, Agency for Healthcare Research and Quality (US), Rockville (MD).
376
https://www.safetyandquality.gov.au/atlas/atlas-2015/. Private prescriptions were not included. The data
are not linked to diagnosis, do not categorise prescribers and do not include dispensing in hospitals. Further
analysis would be required to determine the relationship between dispensing rates and the proportion of
older adults living in residential and community settings.
377
Pharmaceutical Benefits Advisory Committee. Drug Utilisation Sub-Committee, Outcome Statement 6-7
June 2013.
378
Snowdon, J., Galanos, D., Vaswani, D., 2011, 'Patterns of psychotropic medication use in nursing homes:
surveys in Sydney, allowing comparisons over time and between countries', Int Psychogeriatr, Vol. 23, pp.
1520-1525; Hollingworth, S.A., et al., 2011, 'Psychiatric drug prescribing in elderly Australians: time for action'.
Australian and New Zealand Journal of Psychiatry Vol. 45, pp. 705-708; Westbury, J., et al., 2010, 'An effective
approach to decrease antipsychotic and benzodiazepine use in nursing homes: the RedUSe project', Int
Psychogeriatr Vol. 22, pp. 26-36; Nishtala, P.S., et al., 2010, 'Determinants of antipsychotic medication use
among older people living in aged care homes in Australia', Int J Geriatr Psychiatry, Vol. 25, pp. 449-457.
117
The figure may be even higher:
It is estimated that about half of people in aged care and about 80% of those with dementia
are receiving psychotropic medications, although this varies between facilities. There is
evidence to suggest that in some cases these medications have been prescribed
inappropriately.379
Prescribers, aged care staff and family members appear to lack knowledge about antipsychotics'
limited effectiveness, their potential for serious side effects and the success of non-pharmacological,
person-centred approaches. There are pressures on all sides that promote antipsychotics as a 'quick
fix', and once commenced, a 'set and forget' mentality can result.
Over-reliance on antipsychotics as a first line of response, primarily to control behaviour and sedate
people with BPSD,380 may mean other unmet needs can be missed, such as pain and delirium. This
reflects a lack of adherence to guidelines.381
In addition, antipsychotics are often prescribed without appropriate consent,382 which is potentially
a key factor contributing to the high levels of use. Coupled with lack of knowledge, non-adherence
to guidelines or resource issues, the results can be dire:
My mother was incorrectly given antipsychotics which were never prescribed. After spending
10 days in hospital due to an overdose she returned to her aged care home and within two
days she was once again give[n] a non prescribed antipsychotic drug and another Alzheimer
drug which had been ceased. The aged care home did not follow DBMAS recommendations.
Also our concerns of mothers medical issues were ignored and it lead to our mother being
again hospitalised with delirium due to UTI, bowel impaction and polypharmacy issues.383
Strategies to reduce inappropriate use of antipsychotics--research
Efforts to reduce inappropriate use of antipsychotics in Australia and overseas have included
regulatory reforms, guidelines, safety warnings, education, policy, and funded interventions. In the
US, the over-prescription of antipsychotics to the elderly in nursing homes is addressed first by
regulation specific to nursing facilities, such as the Federal Nursing Home Reform Amendments, part
of the Ombudsman Budget Reconciliation Act of 1987, and through the Centers for Medicare and
379
Alzheimer's Australia submission (ID#11395657)
380
NPS MedicineWise, 2013, Antipsychotic overuse in dementia: is there a problem? Health News and
Evidence.
381
Australian Commission on Safety and Quality in Health Care, 2015, The Australian atlas of healthcare
variation 2015.
382
Rendina, N., et al., 2009, 'Substitute consent for nursing home residents prescribed psychotropic
medication', Int J Geriatr Psychiatry, Vol. 24, pp. 226-231.
383
Submission (ID#27635086).
118
Medicaid Services (CMS) guidelines.384 In 2012 CMS released quality indicators to measure
performance that include antipsychotic use.385
In 2010, England's Department of Health commissioned a national dementia and antipsychotic
prescribing audit to collect demographic and prescribing information on people with dementia from
general practitioners' practices. It included any prescription of antipsychotic medicines or any
alternative medicines, including drugs for dementia, hypnotics and anxiolytics and anti-depressants.
There was a reported 52 per cent reduction in antipsychotic prescriptions for people with dementia
between 2008 and 2011.386
Apart from nurse education, single strategies on their own have had limited success in reducing
inappropriate prescribing. Research has shown that interdisciplinary and multi-faceted strategies
hold more promise with a focus on education and review.
Two successful research examples in Australia include the Reducing Use of Sedatives (RedUSe)
program and the Halting Antipsychotic use in Long Term Care (HALT) study, both of which were
funded by the Department. Both studies emphasise the importance of education about the limited
benefit and increased harm of antipsychotics, the potential causes of BPSD, and encourage the use
of non-pharmacological and person-centred approaches to management.
Some residential aged care services are leaders in this field. They demonstrate that improved
outcomes are possible. The challenge lies in the introduction of mechanisms to ensure that all
services can provide safe and quality care for people with dementia and BPSD.
Current regulation in aged care
The use of restrictive practices in aged care is not explicitly regulated. However, residential aged
care providers are required to comply with the quality standards, which, as detailed previously,
include expected outcomes requiring residential aged care homes to provide a safe and comfortable
environment and to comply with all relevant requirements and standards. Meeting these
requirements means that they must be able to protect residents' basic legal and human rights while
at the same time maintaining their duty of care to all residents and staff.
The Quality Agency's Results and processes guide contains advice to assist quality surveyors to
identify and consider whether the Standards are met, including specific items relating to restraint:387
How behavioural management is carried out and communicated to the relevant staff as per the
general care process. For example, how does the home ensure the need for physical and
chemical restraint (if used) has been assessed, has been deemed to be the last resort, is
384
Levin, C., 2011, Lifting the fog: the problem of antipsychotic drug use in nursing facilities.
https://dash.harvard.edu/bitstream/handle/1/8822193/LevinF%26Dpaper.pdf?sequence=1
385
Description of Antipsychotic Medication Quality Measures on Nursing Home Compare,
https://www.cms.gov/Medicare/Provider-Enrollment-and-
Certification/CertificationandComplianc/Downloads/AntipsychoticMedicationQM.pdf
386
Health and Social Care Information Centre, National Dementia & Antipsychotic Prescribing Audit 2012.
387
AACQA, Results and processes guide, https://www.aacqa.gov.au/providers/residential-aged-
care/resources/other-resources/resources, pp. 55-57, p. 93.
119
authorised and administered at a minimum form and level required, and in accordance with
strict safety standards.
When using pharmacological interventions, the aim is to settle distress, without affecting clarity
of consciousness or compromising quality of life. Chemical restraint should only be used when
all other options have been exhausted.
Homes should be able to demonstrate that all other options and alternatives for managing a
resident's behaviour have been exhausted before any form of restraint is employed.
How does the home regularly review its practices for providing a safe and comfortable
environment needs? For example, does the home monitor and review environmental strategies
for avoiding restraint of care recipients and ensuring that care recipients with challenging
behaviours (such as wandering) are safe.
The Department does not directly monitor the use of restrictive practices, although if approved
providers are found not to be compliant with the expected outcomes the Department may take
compliance action.
The evidence available to this Review suggests that the regulatory framework is not sufficient to
protect the rights of residents. The Office of the Public Advocate in Queensland submitted that
features of the legal and service quality framework should include:
... establishing principles ... that restrictive practices may only be used in instances where a
person is at risk and when all other less restrictive measures have been attempted.388
The ALRC recommends that they be used only to prevent serious physical harm, to further raise the
threshold for justification for their use.389
The ALRC has previously discussed the use of restrictive practices in Australia, highlighting the
'patchwork' of federal, state and territory laws and policies governing restrictive practices, and set
out stakeholder calls for reform.390 The Queensland Office of the Public Advocate recommended (as
did the ALRC in 2014) that Commonwealth, state and territory governments "develop a national
approach to the regulation of restrictive practices", including in the aged care sector. Calls for
reform, including for nationally consistent legislated regulation, were repeated in the ALRC's recent
report on elder abuse, which recommended that aged care legislation regulate the use of restrictive
practices in residential aged care facilities.391
Barriers to best practice
Notwithstanding concerns about the current legal framework, there are factors that may inhibit
minimising or eliminating the use of restrictive practise in aged care facilities, including:
Lack of knowledge of guidelines, and guidelines not promoted or easily accessible or tailored.
388
Submission (ID#769301094) p. 15.
389
Australian Law Reform Commission, 2017, Elder abuse--a national legal response, ALRC report 131,
Commonwealth of Australia, p. 251.
390
ALRC, 2014, Equality, capacity and disability report.
391
Australian Law Reform Commission, 2017, Elder abuse--a national legal response, ALRC report 131,
Commonwealth of Australia, p. 251.
120
Residential service characteristics392 such as nursing and care skills, staffing levels, staff
turnover and time pressure that work against implementing person-centred care.
Funding and care models and organisational culture.393
Constraints on the residential aged care facility workforce, including lack of time and
awareness of guidelines, complex patient population and pressure from family members and /
or other residential care staff.
Limited collaboration among general practitioners, residential care staff and pharmacists.
Lack of access to mental health and allied health professionals' expertise for assessment,
guidance on behavioural interventions and appropriate use of medicines, particularly in rural
and remote areas.
Lack of assessment skills, including pain assessment.
View of medication as a first and quick response to behavioural issues, along with a lack of
awareness of the risks of harm and the limited benefits of antipsychotics.
Lack of the knowledge, skills and time to implement non-pharmacological interventions.
Limiting the use of restrictive practices in aged care - developments
It is clear that aiming to eliminate, or at least reduce, the use of restrictive practices requires a multi-
pronged approach to address the barriers to best practice--a combination of regulatory
mechanisms, monitoring and education and support for improvement. According to Alzheimer's
Australia:
All staff in residential aged care facilities need to receive high quality training in dementia
care, including a social model of care and alternatives to physical and chemical restraint.
Quality standards and assessment processes for aged care services should aim to end
inappropriate use of physical and chemical restraint and provide information to consumers
about their use; and the Aged Care Complaints Commissioner should escalate complaints
which relate to use of restraint or assault.394
Building on evidence of high rates of antipsychotics use in the Atlas, the ACSQHC held two
roundtables in 2016 and 2017 to discuss strategies to reduce inappropriate use of antipsychotics
among older people in the community, hospitals and residential aged care homes. This work is
ongoing. Regarding residential aged care homes, the ACSQHC recommends the following strategies:
1. Include dementia, BPSD and antipsychotics in the new aged care standards
2. Monitor appropriate use of antipsychotic prescribing
3. Further define good practice to include informed consent
4. Balance compliance with initiatives that support quality improvement.395
392
Frankenthal, D., et al., 2016, 'The impact of facility characteristics on the use of antipsychotic medications in
nursing homes: a cross-sectional study', Israel Journal of Health Policy Research, Vol. 5, pp. 1-6; Rodriguez-
Monguio, R., Seoane-Vazquez, E., 2014, 'Potentially inappropriate antipsychotic use in a nationally
representative US nursing homes sample: a safety concern', Journal of Pharmaceutical Health Services
Research, Vol. 5, pp. 215-223.
393
Chen, Y., et al., 2010, 'Unexplained variation across US nursing homes in antipsychotic prescribing rates',
Arch Intern Med, Vol. 170, pp. 89-95.
394
Alzheimer's Australia submission (ID#11395657) p. 3.
395
ACSQHC, internal briefing paper.
121
Work in other sectors, notably disability and mental health, is instructive for aged care. In 2014,
Commonwealth and state and territory disability ministers endorsed the National Framework for
Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector (the National
Framework). The National Framework focuses on the reduction of the use of restrictive practices in
disability services that involves restraint (including physical, mechanical or chemical) or seclusion. It
outlines key principles to guide work in this area and core strategies to reduce the use of restrictive
practices in the disability service sector.396 An example of how these principles could be adapted for
aged care is in Box 5.
Box 5. Core strategies for reducing and eliminating the use of restrictive practices
Person-centred focus: including the perspectives and experiences of people with disability and their
families, carers, guardians and advocates during restrictive practice incident debriefing,
individualised positive behaviour support planning, staff education and training, and policy and
practice development.
Leadership towards organisational change: leaders need to make the goal of reducing use of
restrictive practices a high priority, and provide support to their staff to achieve it.
Use of data to inform practice: mechanisms--such as periodic review of behaviour support plans
containing a restrictive practice, provider reporting on use of restrictive practices, reporting client
assessments and individual / positive behaviour support plans--should be used to assess whether
restrictive practices are still needed, and to consider possible alternatives. Data is also important to
determine what factors are effective in reducing or eliminating the use of restrictive practices.
Workforce development: key needs include understanding positive behaviour support and
functional behaviour assessment, and skills for trauma-informed practice, risk assessment, de-
escalation, and alternatives to restrictive practices.
Use within residential aged care services of restraint and seclusion reduction tools: use of
evidence-based assessment tools, emergency management plans and other strategies integrated
into each individual's positive behaviour support plan.
Debriefing and practice review: aged care service providers should undertake regular review
processes of their use of restrictive practices to identify areas for practice and systemic
improvement.
396
Department of Social Services, National Framework for Reducing and Eliminating the Use of Restrictive
Practices in the Disability Service Sector, https://www.dss.gov.au/our-responsibilities/disability-and-
carers/publications-articles/policy-research/national-framework-for-reducing-and-eliminating-the-use-of-
restrictive-practices-in-the-disability-service-sector.
122
The National Mental Health Commission's Seclusion and Restraint project in 2015 looked at the
operation of restrictive practices in mental health and made recommendations on safeguards to the
Council of Australian Governments.397
In December 2016, the Australian Health Ministers' Advisory Council's Safety and Quality
Partnership Standing Committee endorsed National Principles to Support the Goal of Eliminating
Mechanical and Physical Restraint in Mental Health Services. The principles are intended to apply to
all mental health services in Australia.398
We suggest it is time for similar principles to be adopted for aged care. We also recommend that the
Aged Care Commission's Chief Clinical Advisor be required to approve the use of antipsychotic
medications in nursing homes.
Support for aged care providers
Approved providers of aged care are required to have sufficient appropriately skilled and qualified
staff to ensure that they operate in accordance with legislation and expected standards of care,
including protecting residents' rights. They are also required to address the education and
development of staff to ensure they have the knowledge and skills to perform their roles effectively.
In our view, meeting expected standards of care and having the appropriate staff and resources to
do so should mean that barriers to best practice can be overcome. It means committing to minimise
or eliminate the use of restrictive practices to protect residents' human rights in ways that maintain
providers' duty of care to all residents and staff.
The government offers support to help providers meet requirements in relation to qualified staff.
For instance, the government funds the Dementia Training Program (DTP),399 which offers a national
approach to accredited education, upskilling, and professional development in dementia care. The
DTP currently provides:
dementia-specific continuing professional development training to acute and primary health
and allied health professionals
free accredited dementia care vocational training courses to eligible care workers
tailored onsite training to aged care providers who request assistance
a training needs assessment service
an environmental consultancy to provide on-site education, assessment and advice to
managers, staff, project managers and architects who are keen to create more enabling
environments.
In addition, service providers can access more tailored support through the Dementia Behaviour
Management Advisory Services and the Severe Behaviour Response Teams. These services are
397
National Mental Health Commission. A case for change: Position Paper on seclusion, restraint and restrictive
practices in mental health services. May 2015. www.mentalhealthcommission.gov.au/our-work/definitions-
for-mechanical-and-physical-restraint-in-mental-health-services/our-position-paper-a-case-for-change.aspx
398
Australian Health Ministers' Advisory Council - Safety and Quality Partnership Standing Committee,
December 2016, National Principles to Support the Goal of Eliminating Mechanical and Physical Restraint in
Mental Health Services.
399
Dementia Training Australia, https://www.dementiatrainingaustralia.com.au/
123
funded by the Australian Government and delivered by Dementia Support Australia (DSA). Providers
of residential aged care and family carers can access advice 24 hours a day. As part of the service,
DSA provides capacity-building resources and specific strategies for carers and organisations to
improve the care of people living with dementia in the longer term and minimise the use of
restraints.400
The Australian Government also funded the development of the Decision-making tool: supporting a
restraint free environment in residential aged care, to guide residential aged care homes, residents
and their families in this decision-making process, to identify alternatives to the use of restrictive
practices, and to promote a restraint-free environment.401
Monitoring appropriate use of antipsychotic prescribing
As an additional strategy to work towards eliminating restrictive practices, we recommend public
reporting on antipsychotic rates. This is in line with Recommendation 13 of the 2014 Senate
Community Affairs References Committee on care and management of younger and older
Australians living with dementia and BPSD. The committee recommended reporting on
circumstances where antipsychotics have been used for more than six months, together with the
reasons and any steps taken to minimise the use of the drugs, as well as general usage patterns in
each facility.402 There is now an enhanced capacity to do such reporting. From 1 July 2017 the use of
Pharmaceutical Benefits Scheme (PBS) medicines within residential aged care directly from PBS data
provides a mechanism to monitor usage of antipsychotics such as respiridone,403 Through the
collation of this data, the Department will be able to quantify the use of antipsychotics by residential
services. Good models of care will be able to be identified, analysed and published. The
identification of homes with high rates of prescribing will allow the Aged Care Commission to target
these facilities for more attention as having a high risk of breaching the Accreditation Standards.
Informed consent
The lack of informed consent in current practice is potentially a key factor that contributes to the
high levels of use of antipsychotics. This could be addressed by further tightening the PBS clinical
criteria restrictions to include the need for documented informed consent. It could also be included
in compliance monitoring by the new Aged Care Quality Commissioner.
While ideally, informed consent should be obtained from the resident, it is likely that in many cases
where restraints are used, the resident lacks the capacity to consent. Consent should then be
400
Dementia Centre, Dementia Support Australia (DSA), http://www.dementiacentre.com.au/services/dsa
401
Department of Health, Decision Making Tool: Supporting a Restraint-Free Environment,
https://agedcare.health.gov.au/publications-articles/resources-learning-training/decision-making-tool-
supporting-a-restraint-free-environment. There is a companion guide for community aged care.
402
Senate Community Affairs References Committee, 2014, Report of the inquiry into care and management of
younger and older Australians living with dementia and behavioural and psychiatric symptoms of dementia
(BPSD),
http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Dementia/Report/i
ndex
403
Department of Health, Revised dispensing for nursing home residents,
www.pbs.gov.au/info/news/2017/06/revised-dispensing-for-nursing-home-residents-july-2017
124
obtained from a substitute decision-maker. Enforcing the requirements for obtaining informed
consent promotes shared decision-making and greater effort to explain benefits versus harm and
possible alternatives.
Family members and carers should be involved as partners in care as early as possible. They need to
be educated, empowered and supported in their role. We see a role for the Aged Care Quality
Commission to lead the development of relevant shared decision-making tools to support informed
consent.
Are restrictive practices ever truly necessary?
Some have argued that, although they should be a last resort, restrictive practices are sometimes
necessary to protect other care recipients and staff. However, we believe that the use of restraints--
whether physical or chemical--is not a solution when a person is exhibiting behaviours of concern.
The application of restrictive practices usually escalates, rather than calms, a person's behaviour.
According to Alzheimer's Australia, there should instead be a focus on the 'environmental or service
factors' that cause problematic behaviour.404 Instead of using restraints, aged care staff need to be
supported and given adequate time to provide responsive and flexible and individualised care.
There are also different views about how restrictive practices could be reduced or eliminated. Some
echo the ALRC's call for legislative regulation of restrictive practices. Others propose non-regulatory
means as a better approach to achieving a reduction or elimination of their use.
The key elements set out in Recommendation 7 are intended to discourage the use of restrictive
practices and set a clear and high standard to move towards their elimination. Restrictive practices
must be subject to proper safeguards and used only when strictly necessary. Through regular review
and continuous improvement, it is intended that over time their use will be eliminated.
We support the concept of the National Disability Insurance Scheme Quality and Safeguarding
Framework. It provides a nationally consistent approach to help empower and support scheme
participants to exercise choice and control, while ensuring appropriate safeguards are in place and
establishing expectations for providers and their staff to deliver high-quality supports.405 A senior
practitioner and required reporting on the use of restrictive practices are features of the National
framework for reducing and eliminating the use of restrictive practices in the disability service sector.
We note that the ALRC also recommended consideration of these additional oversight mechanisms
as part of any regulation of such practices in aged care.
We recommend that professional guidance to reduce the use of restrictive practices be developed
by the Chief Clinical Advisor in the new Aged Care Commission, who must approve the inclusion of
restrictive practices in a person's behaviour support plan before they can be used on a person. These
additional measures may assist in providing leadership and expertise in reducing and eliminating the
use of restraint.
404
Alzheimer's Australia submission (ID#11395657).
405
Department of Social Services, 2016, NDIS quality and safeguarding framework,
https://www.dss.gov.au/sites/default/files/documents/04_2017/ndis_quality_and_safeguarding_framework_f
inal.pdf
125
We envisage that the Aged Care Commission will oversee guideline implementation and lead the
development of decision-making tools to support the limited, appropriate use of restrictive
practices.
Recommendation 7. Aged care standards will limit the use of restrictive practices in
residential aged care.
Actions
(i) Any restrictive practice should be the least restrictive and used only:
(a) as a last resort, after alternative strategies have been considered, to prevent
serious physical harm
(b) to the extent necessary and proportionate to the risk of harm
(c) with the approval of a person authorised by statute to make this decision
(d) as prescribed by a person's behaviour support plan
(e) when subject to regular review.
(ii) Approved providers must record and report the use of restrictive practices in
residential aged care to the Commission.
(iii) Accreditation assessments will review the use of psychotropic agents.
(iv) Chief Clinical Advisor must approve the use of antipsychotic medications for aged care
residents.
126
Chapter 8: Better accreditation and compliance
monitoring
This chapter considers how to improve the effectiveness of accreditation and compliance monitoring
in regulating the quality of residential aged care.
It is widely accepted that aged care is highly regulated.406 The Commonwealth Government has
outlined a process of reform to transition the system towards one in which consumers and their
families exercise choice and the needs of consumers become the focus and the principal driver for
quality improvement. This is a worthy objective and many of the recommendations in this Report
are designed to facilitate transition to a market-driven regulatory model, by increasing consumer
knowledge and choice.
However, the market needs to mature considerably before a truly consumer-driven model can be
achieved. Currently, the government caps supply of beds in residential aged care facilities with
average occupancy rates across the sector of approximately 92 per cent.407 This operates as a
significant constraint on competition and choice as drivers for quality.
The average time that residents stay in permanent residential aged care is three years.408 Less than
three per cent of residents changed facilities in 2015-16, and only a portion of these would be for
reasons connected with consumers exercising a choice between providers.409 These statistics do not
point to a market in which consumer choice flourishes.
More than 53 per cent of people living in permanent residential aged care have dementia410 and 49
per cent of these residents are classified as having severe cognitive skills impairment.411
For consumer-based competition to effectively drive quality improvement, there needs to be
significant structural and cultural change. This will take time to implement across the sector.
Even in a mature market, there will always need to be appropriate protections for more vulnerable
consumers who may not have the capacity to advocate for themselves or have family support to
advocate on their behalf.
406
De Boer, R., 2010, 'Challenges of an ageing population', Parliamentary library briefing book,
www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BriefingBook43
p/ageingpopulation.
407
Australian Institute of Health and Welfare, 2017, GEN. Canberra: AIHW. http://www.gen-
agedcaredata.gov.au.
408
Australian Institute of Health and Welfare, 2017, GEN. Canberra: AIHW. http://www.gen-
agedcaredata.gov.au
409
Australian Institute of Health and Welfare, 2017, GEN. Canberra: AIHW. http://www.gen-
agedcaredata.gov.au
410
Australian Institute of Health and Welfare, 2011, 'Dementia among aged care residents: first information
from the Aged Care Funding Instrument', Aged care statistics series no. 32, Cat. no. AGE 63.
411
Australian Institute of Health and Welfare, 2011, 'Dementia among aged care residents: first information
from the Aged Care Funding Instrument', Aged care statistics series no. 32, Cat. no. AGE 63.
127
Consequently, this Review is focused on what needs to be done to make accreditation more
effective in the current context. The proposed model can be revised progressively to adapt to
evolving changes in the marketplace towards a more consumer-driven model.
We caution the government not to establish a regulatory system around a consumer-driven market
before the market is ready to take on this role.
A risk-based approach to accreditation
The objective of accreditation is to ensure that providers meet basic standards for the quality and
safety of care, and to provide assurance to consumers, families and the community. The intention of
aged care quality regulation is not to 'catch providers out'. Many instances of non-compliance result
from providers not understanding their responsibilities or how to demonstrate compliance with the
Standards. Ideally, regulatory checks should identify where care needs to be improved and support
facilities to achieve this.
What are the problems with the current approach?
Announced site visits are ineffective tools
The focus (of Oakden) was on ensuring staff knew what to say during accreditation, rather
than knowing how a service should provide high quality care...
The review heard and saw evidence that Oakden became better at knowing how to produce
documents and records that accrediting bodies and surveyors wanted to and expected to see;
and better at ensuring staff knew what to say. However, it became no better at providing
safe or better care.412
There was a strong view expressed by consumers, their families, advocates and aged care workers in
aged care homes that announced visits are staged. It is understandable that facilities want to
perform well during accreditation visits. However, this approach to monitoring care places emphasis
on passing accreditation rather than delivering high-quality care all the time.
There was strong support in submissions to this Review for increased use of unannounced visits as a
way of seeing the real picture of care and being able to determine what support providers need.
All audits should be unannounced: The current process of alerting facilities to an upcoming
accreditation encourages bandaid practices and window-dressing to ensure the facility
presents itself in the best possible light. ... It's known as the 'pre-accreditation shuffle': give
the walls a fresh coat of paint, buy some new outdoor furniture, roster extra staff on the
audit day, go back and fill in all the blanks on your paperwork and don't serve the cold party
pies until the next week.413
Some submissions also noted the stress caused to staff and residents in preparing for announced re-
accreditation visits:
412
Groves, A., et al., 2017, The Oakden report, South Australia Department for Health and Ageing, p. 77.
413
Submission (ID#617437173).
128
I think a lot of the evidence which has to be supplied is all very well but speaking for myself I
spend 80% of my time collecting data that will never be looked at but is done in case it is. I
would much rather spend my time monitoring the actual care being given.414
Annual unannounced visits are a major element of the current approach to monitor provider
performance. Quality Agency data over the past five years demonstrates that unannounced site
visits are more effective than announced site visits at identifying non-compliance (Table 1).
However, currently, most unannounced visits are conducted over one day and not all outcome
measures are assessed, limiting their capacity to identify issues with care quality.
Table 1. Percentage of responsive* visits where new non-compliance was found at a
facility415
Financial year Assessment Assessment contact, Review audit, Review audit,
contact, announced unannounced announced
unannounced
2013 7% 2% 67% 33%
2014 3% 1% 83% 43%
2015 2% 1% 80% 57%
2016 1% 1% 50% 63%
2017 4% 1% 70% 58%
*Responsive refers to a visit triggered in response to information received about a service (e.g.
complaint, referral from the Department of Health or the Complaints Commissioner, information
from a media report), identification or monitoring of non-compliance, or reasonable grounds a facility
may not be complying with the Standards.
There has been criticism that unannounced visits are disruptive for facilities. However, feedback
received by the Quality Agency following site visits indicates that "the level of disruption is not as
extensive as some commentators have suggested".416 In a survey of views from 62 per cent of
providers following site visits, 92 per cent rated assessment teams conducting unannounced visits
excellent or very good in relation to allowing staff to conduct their work.417
Insufficient time for site audits
A re-accreditation site audit typically includes entry and exit meetings, documenting and recording,
interviews with residents and representatives, managers, direct care staff and others (such as
414
Submission (ID#322970458).
415
Source: Data provided by the Australian Aged Care Quality Agency, 27 July 2017.
416
AACQA, Annual report 2015-16.
417
AACQA, Annual report 2015-16.
129
volunteers), observation of practices and the general environment of the facility, and review of
complaints.
Meeting these requirements within a two-day re-accreditation site visit limits the time that can be
spent investigating whether the care delivered matches the paperwork. The current approach, which
pays insufficient attention to the risk of non-compliance of the service, also means that quality
surveyors do not always have the time or resources on the ground to conduct further investigation
when they suspect issues may exist. As one surveyor commented:
The main change the assessment and monitoring process desperately needs is to have more
surveyor resources allocated on visits. The current level of staffing resources - and by this I
mean our time on site, as well as the number of surveyors on most visits - is too low for us to
be able to do a good job of checking whether the home is meeting the standards. The current
allocated staffing only allows us to skim the surface on what is happening at a home and so,
unless a problem comes up and bites us on the nose, it can easily be overlooked.418
Indeed, limited time and resources might make quality surveyors risk averse. According to National
Seniors Australia:
Given the short time-frame allowed, quality assessors may be reluctant of a negative finding
toward a provider as it implies that residents will be subject to detrimental outcomes, when
this may or may not be the case.... This responsibility is likely to weigh heavily on assessors,
who may act in a risk averse manner if they are unable to adequately substantiate negative
findings in the short time frame provided.419
Several submissions highlighted the benefits of extended visits:
Surveyors should come onsite and be placed in a facility for a length of time to understand,
observe work practices that occur. This would be beneficial to impart consistency of practice
in an everyday setting. It would enable surveyors to be at the coal face, not just viewing
documentation.420
However, it appears difficult for surveyors to get authorisation from the Quality Agency to extend
visits. The Nous Group, which conducted an internal review of the Quality Agency processes, noted
that at Oakden:
The reaccreditation visit resource allocation was insufficient to conduct an assessment of a
high risk facility, find non-compliance and determine Serious Risk because of the breadth of
work required, and the inappropriate interaction of staff and residents within the facility
would have been apparent only over a longer timeframe.421
Rather than the re-accreditation being an effective instrument for identifying poor care, the Nous
Group commented:
Data provided by the Quality Agency demonstrates that it is rare to find failure of care during
an accreditation audit. There has been an expectation (by the Quality Agency staff and
418
Submission (ID#346790910).
419
National Seniors Australia submission 504028734
420
Submission (ID#426849911).
421
The Nous Group, External independent advice: Australian Aged Care Quality Agency (2017).
130
Providers' staff) that all Expected Outcomes would be met at accreditation audits, where the
service has three to six months to prepare for demonstration of Standards on a specified
date, and the self-assessment prepared by the provider provides the guide for the audit.422
Improving the effectiveness of accreditation
Implement more effective processes for monitoring care quality
Currently, when an approved provider applies for initial accreditation of its residential care service,
an announced site audit is conducted against all 44 expected outcomes within months of the facility
commencing operations. It is proposed that this approach continue, with an emphasis on supporting
the provider to understand and meet the Standards, help solve problems and strengthen the
service's performance. Establishing a constructive working relationship between the new Aged Care
Commission and the service supports a responsive regulatory approach where punitive strategies
are less often needed.423
It is recommended that in place of scheduled re-accreditation visits on a fixed accreditation cycle, a
more robust system of unannounced visits be introduced, with investigation of provider
performance against all 44 outcome measures under the Standards and a minimum of two days
allocated to each site visit.
Greater emphasis on unannounced visits will address the issues identified in this Review, in Groves'
examination of Oakden, and in regulatory good practice, of shifting the emphasis in the residential
aged care system towards ongoing delivery of quality care and away from passing a test at a single
point in time.
Shifting from a standard accreditation cycle to ongoing accreditation with regular monitoring will
have other advantages. It would free providers from diverting resources to prepare for a fixed
accreditation event, which was raised as an issue with this Review. It would allow the Aged Care
Commission to better manage resources, by evening out peaks and troughs in its workload. Most
importantly, it would support a regulatory framework that is fully responsive and fully risk-based, to
better protect consumers and better support providers.
It is further proposed that changes to the way that experiences of consumers, family and staff are
collected (described in chapter five) will give quality surveyors more time to spend monitoring care.
Under the proposed model, assessment outcomes from unannounced visits will be published,
providing consumers with up-to-date information on provider performance. Reports and decisions
should be presented in plain language on the My Aged Care website.
More effective allocation of regulatory resources
The current system needs to transition to a responsive regulatory model.
The expanded risk profiling of providers described chapter five should be applied to determine the
frequency and duration of unannounced visits, so that surveyors can focus on supporting providers
at greatest risk of non-compliance.
422
The Nous Group, External independent advice: Australian Aged Care Quality Agency (2017).
423
Productivity Commission, 2011, Caring for older Australians, Appendix F, p. F9.
131
Consistent with this risk-based approach, we propose that the current prescriptive system of annual
unannounced visits for all providers be changed so that high-performing facilities receive fewer
unannounced visits. This rewards high-performing providers for the investment made in delivering
quality care. Conversely, the frequency, duration and staffing of unannounced visits should be
greater for providers in higher-risk circumstances, to ensure that surveyors are able to properly
investigate care quality.
As we argued in chapter three, higher risk is not determined solely based on the risk of provider non-
compliance. It also relates to the complexity of care that the service provides, and the vulnerability
of the residents cared for. There are many consumers whose care is more complex to deliver or who
may have fewer supports, for example:
people with severe dementia
people with mental illness
people under guardianship
people with disabilities requiring specialised supports
people who are homeless or at risk of homelessness.
The Quality Agency has also already established that there are other risk factors that do not reflect
on a provider's expertise or willingness to comply with the Standards. These include a service being
in a rural or remote area, or operating in locations prone to extreme weather events.424
Risk-based assessment of providers under a system of ongoing accreditation would ensure that the
Aged Care Commission would engage more closely with providers who experience any risk factors.
The emphasis would continue to be on strongly supporting providers in their ongoing provision of
quality care, rather than on taking compliance action.
By way of example, Oakden cared for numerous consumers in the first three of the categories in the
list above, and on this basis, would have received closer support and supervision from the Quality
Agency, not because it had problems or needed to be threatened with compliance action, but
because the accreditation system recognised the inherent demands in offering high-quality care to
people with complex needs.
Announced support contacts would continue under this model and would play a significant role in
educating providers.
Through the elimination of re-accreditation audits and the re-distribution of resources according to
risk, this model is designed to minimise cost increases for government. Existing provider payments
for re-accreditation visits and the annual contribution for an unannounced visit should be rolled over
into an annual contribution under the new model, with no net increase to provider contributions.
Since the revised process allocates visits based on potential risk of non-compliance, it is proposed
that provider contributions to the cost of visits be based on the number of beds in each facility and
not on the number of visits conducted. This means there would no longer be a direct link between
provider contributions and unannounced visits.
424
AACQA, personal communication.
132
Recommendation 8. Ongoing accreditation, with unannounced visits, to assure safety and
quality of residential aged care.
Actions
(a) The initial accreditation visit will be announced.
(b) Eliminate re-accreditation visits and replace with unannounced visits:
(i) conducted over at least two days;
(ii) assess residential service performance against all standards;
(iii) risk-based process used to determine frequency and rigour of visits.
Assessment against Accreditation Standards
The previous section of this chapter outlined the first important step in more effective monitoring of
compliance with the Standards: developing a more effective, risk-based approach to accreditation.
Several other steps are also necessary to improve assessment:
Recruit fit-for-purpose assessment staff and provide the right training
Ensure guidance material for outcome assessment reflects best practice
Review Standards over time
Improve and assess clinical governance
Each step is discussed below.
Assessment staff: quality and training
Assessment teams need the capacity to engage expertly with providers to assess, support and,
where necessary, improve providers' practices.
In the reformed regulatory arrangements outlined in this Review, it will be particularly important
that quality surveyors have the skills to look deeply into a service's care and management systems.
They need to be able to distinguish good documentation from good care, and to see that
management-speak translates into good practice. Most of the time, most providers are doing the
right thing and doing it competently. Effective regulation relies on assessment teams having the
skills to detect and respond in situations when this is not the case.
The capability of assessment teams needs to match the increasingly complex care needs of residents
in aged care facilities. Assessment teams need a strong understanding of, and the skills to assess, a
diverse range of care services.
Ensuring quality surveyors have the skills and / or experience to assess all residential services will
require diversity of skills and careful management by the Aged Care Commission because of the
range of provider sizes, complexity and service models.
The integration of regulatory functions in a single authority, together with reforms to the
accreditation model, will require adjustment in the assessment workforce. While it is impractical to
expect each quality surveyor to have breadth of experience that traverses all service types, the
133
balance of skills possessed by the assessment teams contributes to the rigour of assessment and
should be commensurate with the type and complexity of care in the facility being assessed.
Additionally, detailed guidance material with clearly defined outcome measures will ensure
consistency of assessment.
We heard from providers and experienced staff, who argued that further development of the
workforce is needed:
The current accreditation standards are too 'vague' and open to interpretation and assessors
are very often not appropriately qualified and experienced enough to make sound
judgements.425
Peak body, Aged Care Guild, indicated that it:
considers the wide variation in approaches to, and application of, the Standards and how
homes are assessed and monitored as evidence of an inconsistent approach and variation of
the skills set and interpretation of the Standards. Despite the assurances of the Quality
Agency, this is a common experience of Guild providers and facilities. Ultimately, this will see
different approaches and interpretation of the Standards applied in different geographic
regions.426
Submitters expressed concerns about a range of aspects of skills, with some mentioning surveyors'
qualifications, others identifying relevant experience as significant, and others commenting on the
importance of a clinical background:
The (assessment) team must also include at least one Registered Nurse (RN) with a
background in aged care, but unaffiliated with any aged care provider or regulating body.
Those who are not nurses should be very familiar with nursing professional standards and
the application of these standards to the delivery of nursing services in the aged care setting.
Non-clinician assessors should only assess those aspects of the aged care service that are
non-clinical.427
The feedback from public consultation on the Single Quality Framework also emphasised "the need
for quality surveyors to be appropriately qualified and with expertise in the type of service being
reviewed".428 As we argue later in this report, the non-clinical aspects of standards and assessment
are critical and need to be given greater prominence, while ensuring that good clinical practice and
governance are embedded in aged care and assessment.
The Quality Agency provided information about the experience, skill base, training and support for
the Quality Agency workforce.429 While over half of surveyors (53 per cent) have nursing
qualifications and experience, the currency (including maintenance of professional registration and
425
Submission (ID#101503685).
426
Aged Care Guild submission (ID#1032742486).
427
Qld Nurses and Midwives Union submission (ID#950941010).
428
Department of Health, 2017, Report on the outcomes of consultations on the Single Aged Care Quality
Framework, p.14.
429
Quality Agency information provided for the review regarding experience, skill base and training of Quality
Assessors, received 8 September 2017.
134
the associated mandatory continuing professional development requirements) and relevance to
aged care of their experience is unclear.
The Quality Agency's surveyors are supported through a program of continuing professional
development.430 The Agency provides:
ongoing training of assessors about contemporary audit techniques and methodologies, as
well as general industry developments, government policy and legislative updates.431
However, training appears not to include a strong focus on issues that directly impact on consumer
outcomes.
At Oakden, the failure of assessment teams to identify problems with care and clinical governance
highlights the importance of assessors having a good understanding of these areas. As the Quality
Agency itself notes:
Following the Oakden report the Quality Agency is also taking steps to develop the workforce
to ensure it is equipped to respond to the increasingly complex residential aged care
environment. This includes a renewed focus on the surveyors, through training and
recruitment, as well as developing and maintaining a skills audit to enable the right
resources to be matched to assessment of higher risk facilities.432
There is also evidence that Oakden was not an isolated case. Despite almost 98 per cent of
residential care facilities complying with the Accreditation Standards, including outcomes relating to
clinical care, dissatisfaction with clinical care, particularly medication administration and
management, remains the top source of complaints received by the Aged Care Complaints
Commissioner.433
The importance of having an expert assessor to assess clinical governance and clinical care has been
highlighted by the ACSQHC. In its recent review of the Australian Health Services Safety and Quality
Accreditation Scheme, the commission proposed the introduction of expert assessors to improve the
effectiveness and expertise of the assessment team.434 As part of this strategy, it will specify
qualification and training requirements and develop a training program for expert assessors.
The Review acknowledges the work of the Quality Agency to develop its workforce to respond to the
increasingly complex residential aged care environment. However, strategies must be implemented
to further strengthen the capabilities of assessment teams.
430
Quality Agency information provided for the review regarding experience, skill base and training of Quality
Assessors, received 8 Sept 2017.
431
AACQA, Annual report 2015-16, p. 72.
432
Quality Agency information provided for the Review regarding experience, skill base and training of Quality
Assessors, received 8 Sept 2017.
433
Complaints Commissioner, Annual Report 2016-17.
434
Australian Commission on Safety and Quality in Healthcare, April 2017, Revision of the Australian Health
Services Safety and Quality Accreditation Scheme to improve the reliability of health service organisation
accreditation processes.
135
The assessment workforce can make greater use of the expertise of people experienced in the use of
aged care. England's Care Quality Commission uses a program of 'experts by experience' to support
the commission's program of inspections, including in aged care:
During inspections, Experts by Experience speak to people using services and their family or
organisations that support them. They may also observe how the service is delivered and
speak to staff. Their findings are used to support the inspectors' judgments on services and
may be included in inspection reports.435
The use of consumer expertise is similarly developed in other sectors, such as mental health.436 This
approach could also support the stronger focus on quality of life, not just clinical care, to meet
consumer expectations.
It is important that quality surveyors have the skills to thoroughly investigate compliance with
standards, under the integrated model of the new Aged Care Commission. As the OECD's best-
practice guide on regulatory enforcement argues, it is important for regulatory staff not only to have
technical competence in the fields relevant to the type of risk being addressed, but also specific
inspection skills.437
Part of the Aged Care Commission's role will be investigation and analysis when there are concerns
about whether a service is meeting the Accreditation Standards. For agencies that conduct
investigations where it is possible that there will be civil penalties or administrative sanctions, the
Australian Government Investigations Standards are relevant.438 They recommend specific training
for staff with these functions:
Certificate IV in Government (Investigation), or its equivalent, as set out in the Public Services
Training Package (PSP04). This qualification should be obtained before an officer is primarily
engaged as an investigator; otherwise the officer should be under the supervision of a
qualified investigator.439
The Aged Care Commission's team will need some of its surveyors to meet this standard.
Appropriate guidance material to assess outcomes
As outlined in the Quality Agency Principles 2014, the Standards do not provide instructions on how
to meet expected outcomes, as it is recognised that residential services will have different ways to
achieve quality based on the individual service and the needs of care recipients. The Quality
435
Care and Quality Commission, Experts by experience, http://www.cqc.org.uk/about-us/jobs/experts-
experience.
436
See for example SA Health, Experts by Experience Initiative--Mental Health,
http://www.sahealth.sa.gov.au/wps/wcm/connect/public+content/sa+health+internet/about+us/our+local+h
ealth+networks/country+health+sa+local+health+network/engaging+with+chsa/experts+by+experience+initiat
ive+-+mental+health+-+country+health+sa.
437
OECD, 2014, Best practice principles for regulatory policy: regulatory enforcement and inspections, p. 47.
438
Australian Government Investigations Standards, August 2011.
439
Australian Government Investigations Standards, August 2011, p. 2.
136
Agency's Results and processes guide identifies key areas where positive outcomes are expected to
be seen, without being prescriptive.440
Several factors support flexibility of the Standards. As described by the Productivity Commission, the
Standards:
specify the outcome of the improvement or desired level of performance but leave the
concrete measures to achieve them open for the 'duty holder' to adapt to varying local
circumstances.441
Researchers from US advocacy organisation AARP Foundation compared Australia's aged care
system with several other countries. They described the Australian aged care standards as "very
broad and non-specific to allow providers considerable latitude in demonstrating how they achieve
quality goals".442 This approach is intended to promote innovation in how providers deliver care.
They argued that flexible standards allow a "focus on broad issues of facility quality rather than
compliance with detailed regulations".443 This encourages dialogue among surveyors, providers and
consumers to establish if and how expected outcomes have been met.444
While this flexibility in standards can be appropriate, it can create issues for both the assessing
regulator and providers in determining how care can best be provided, and what counts as failure to
meet the standards. In flexible standards, the criteria for compliance are more difficult to define:
For some standards, a flexible approach is adequate, as different services have different
capabilities and capacities. However, this may lead to inconsistencies between each assessor,
or the assessment process not picking up on vital signs of incompetence.445
Common criticisms of the Accreditation Standards raised in submissions to this Review are that they
lack specificity, the language used is unclear, and they are too open to interpretation.446 It was
argued that this leads to variation in assessments and inconsistency in decision-making, and that
accreditation needs to be more objective and evidence-based.
The need for more specific assessment criteria was consistent with consultation feedback on the
Single Quality Framework. Stakeholders noted the need for guidance materials that "draw out the
requirements of the standards and describe how requirements will be monitored and measured".447
As noted by the Victorian Department of Health and Human Services:
440
Quality Agency Principles 2013. https://www.legislation.gov.au/Details/F2017C00136
441
Productivity Commission, 2011, Caring for older Australians.
442
Weiner, J.M., et al., 2007, Quality assurance for long-term care: the experiences of England, Australia,
Germany and Japan, Public Policy Institute Issues Brief 2007-05, AARP, Washington, p. vi.
443
Weiner, J.M., et al., 2007, Quality assurance for long-term care: the experiences of England, Australia,
Germany and Japan, Public Policy Institute Issues Brief 2007-05, AARP, Washington, p. ix.
444
Weiner, J.M., et al., 2007, Quality assurance for long-term care: the experiences of England, Australia,
Germany and Japan, Public Policy Institute Issues Brief 2007-05, AARP, Washington, p. 12.
445
Australian Medical Association Submission 833514879.
446
Submissions (ID# 224160559, ID#685384744), Australian Aged Care Group (ID#101503685), Australian
Nursing and Midwifery Federation (ID# 522721697).
447
Department of Health, July 2017, Report on the outcomes of consultations on the single Aged Care Quality
Framework, p. 6.
137
Expectations around standards of care need to be clear and specific so that: care recipients
and providers understand these expectations; performance can be objectively measured and
reported, and not open to broad interpretation by either providers or assessors and support
more consistent care. This includes defining safety and quality and adverse events as they
relate to aged care.448
Broad or specific requirements for meeting the standards?
One issue raised in submissions concerned the broad requirements for addressing Standard 2:
Health and personal care, which encompasses clinical care. A number of submissions noted the lack
of clarity around best practice for clinical care, particularly issues related to administration of
medicine, sterilisation standards and incident reporting protocols. It was argued that clinical care
should not be subject to interpretation, but be very clear in terms of requirements.
The Australian Medical Association noted:
Standards that relate to medical care should not be subject to interpretation to ensure
quality care is received and so RACFs are aware of their specific responsibilities.
and:
The accreditation standards however give vague indications to RACFs on how to achieve
adequate care. Regulations and standards in the aged care sector needs to be loose in areas
that will improve innovation and quality in the sector, but not where medical care is involved.
We hope to see standards refined through the development of a single set of aged care
quality standards.449
The Victorian Department of Health and Human Services also pointed out that:
The aged care quality assessment and accreditation framework lacks adequate systems for
monitoring the effectiveness of clinical and medical care.450
On the other hand, some regulatory experts argue against increasingly prescriptive standards for
quality and safety. Braithwaite and colleagues argue that greater prescription and compliance
enforcement can work in cases where:
Such activities are tractable, meaning that the underlying principles are well understood,
that problems are amenable to decomposition, that conditions of work are relatively well
specified, stable and controllable, and that dependence on external events is limited.
Most healthcare activities however are intractable, because care settings are complex and
unpredictable. This means that the underlying principles are incompletely known, that
448
Victorian Department of Health and Human Services, Submission to the Senate Community Affairs
Reference Committee, p. 5.
449
Australian Medical Association submission (ID#833514879).
450
Submission by the Victorian Department of Health and Human Services to the Senate Community Affairs
References Committee inquiry, p. 5.
138
problems are complex and resist decomposition, that conditions of work are underspecified
and unstable ... 451
The way the Standards are written polarises stakeholder views. Most submissions to this Review,
and commentary in the public domain, recommends that the Standards either maximise flexibility in
interpretation or be more defined to support objective decision-making and consistency. However,
these views are not mutually exclusive.
The Productivity Commission noted that:
It might be possible to develop a middle ground between broad standards and specific
standards which allow the development of more systematic, quantifiable measures of the
quality of care that could be used over time to compare facilities or to benchmark the whole
system to track changes over time.452
Evidence-based guidance to support care provision and assessment allows the standards to be
flexible, but for good practice to be recognised and expected.
Where evidence-based best-practice care is well defined, the Standards should enable providers to
deliver care that meets the Standards. There are existing guidance and best-practice materials for
residential aged care such as those for medication management,453 use of restraint,454 preventing
pressure injuries,455 end-of-life care456 and preventing falls.457 Assessment should include an
expectation that consistent implementation of such guidance is necessary for providers to meet the
Accreditation Standards.
An example of how this approach can be implemented can be seen in the draft National Safety and
Quality Health Service (NSQHS) Standards (version 2). These address specific high-risk clinical areas
of patient care458 and the accompanying guides include examples of suggested key tasks, strategies
and resources that health service organisations can use to implement the NSQHS standards.459
451
Braithwaite, J., Wears, R.L., Hollnagel, E., 2015, 'Resilient health care: turning patient safety on its head',
International Journal for Quality in Health Care, Vol. 27(5), pp. 418-419.
452
Productivity Commission, 2011, Caring for older Australians, p. 429.
453
Department of Health, October 2012, Guiding principles for medication management in residential aged
care facilities.
454
Department of Health, August 2012, Decision-making tool: supporting a restraint free environment in
residential aged care.
455
National Pressure Ulcer Advisory Panel, European Pressure Ulcer Advisory Panel and Pan-Pacific and
Pressure Injury Alliance, 2014, Prevention and treatment of pressure ulcers: quick reference guide. Cambridge
Media, Perth, Australia.
456
Queensland Health, Residential aged care end of life care pathway,
https://metrosouth.health.qld.gov.au/raceolcp; the National Palliative Care Standards are currently being
finalised. See http://palliativecare.org.au/policy-and-publications/the-national-standards/.
457
Australian Commission on Safety and Quality in Health Care, 2009, Preventing falls and harm from falls in
older people: best practice guidelines for Australian residential aged care facilities. ACSQHC, Sydney.
458
Australian Commission on Safety and Quality in Health Care, 2016, Draft National Safety Quality Health
Service Standards (version 2). Standard 4 - Medication safety standard and Standard 5: Comprehensive care
standard address areas of clinical care relevant to residential aged care.
459
Australian Commission on Safety and Quality in Health Care, 2017, Consultation Draft National Safety
Quality Health Service Standards Guide for Hospitals.
139
These resources were developed for use in the clinically-focused hospital environment, but illustrate
how information could provide clarity to both quality surveyors and aged care service providers on
what quality care looks like and how it should be delivered. Alzheimer's Australia endorsed
consideration of this approach in aged care:
What Alzheimer's Australia's consumers make clear to us is that there is a need to better link
compliance with quality assurance ... Another example of how this might work is provided in
the health care sector by the ACSQHC, through the development and implementation of the
NSQHS Standards. The primary aims of the NSQHS Standards are to protect the public from
harm and to improve the quality of health service provision. They provide a quality-assurance
mechanism that tests whether relevant systems are in place to ensure expected standards of
safety and quality are met.460
The next section explores aspects of care that continue to present challenges to the quality of care in
residential aged care and proposes how these could be addressed through accreditation. It also
explores the need to plan for ongoing revision and improvement in the Accreditation Standards to
ensure that accreditation adapts to address emerging issues in care quality and safety, and new
evidence around best practice.
Two case studies
Despite almost all providers meeting Standard 2 on Health and personal care, complaints received
by the Complaints Commissioner and independent peer-reviewed research continue to highlight
issues with aspects of clinical care.461 Some of the issues lie at the interface of residential aged care
and health services.
Two areas in which ongoing issues have been noted are the coordination of resident transfers to
hospital and medication management. Conspicuously, the existing Results and processes guide462
refers to assessment of both of these aspects of clinical care, however little detail is provided on
how this should be done.
Obviously, providers are not solely responsible for issues with medication management and
communication between aged care facilities and hospitals. However, aspects of care within the
control of facility staff could be more effectively managed to improve resident care outcomes.
Ineffective coordination between residential aged care and hospitals
Provider responsibility for clinical care extends to the information provided with a resident who is
referred to see medical practitioners outside the residential care setting:
460
Alzheimer's Australia submission (ID#11395657).
461
Courtney, M., et al., 2010, 'Benchmarking clinical indicators of quality for Australian residential aged care
facilities', Australian Health Review, Vol. 34, pp. 93-100; Morphett, J., et al., 2014, 'Shortfalls in residents'
transfer documentation: Challenges for emergency department staff', Australasian Emergency Nursing
Journal, Vol. 17: 98-105; Somers, M., et al., 2010, 'Quality use of medicines in residential aged care', Australian
Family Physician Vol. 39(6):413-6.
462
AACQA, 2014, Results and processes guide, pp. 36 & 41-43.
140
The communication of accurate medical information is fundamental to providing quality care
to all patients as they transfer within the health care system. Standards for transfer of
information with the patient are being set within and on discharge from acute care settings
both in Australia and internationally. Similar standards could be adopted for the transfer of
aged care residents. ... The aged care quality assessment and accreditation framework could
better support safe and continuing care between home, acute and aged services by setting
information standards for resident/patient transfers.463
Failure to provide clinical information with residents transferring to hospital adversely impacts
patient outcomes, resulting in service duplication and medical services that are not required.464 One
study found alarming failures in the provision of critical clinical information--clinically important
documentation was frequently absent, including the reason for transfer to the emergency
department (in 48.2 per cent of transfers), baseline cognitive function (in 59.7 per cent of transfers),
and vital signs at the time of complaint (in 69.9 per cent of transfers).465
Ineffective medication management
Clarity around clinical practice is particularly relevant with respect to medication management. With
aged care residents taking an average of 9.75 medications, polypharmacy (the concurrent use of five
or more drugs) is commonplace.466 As stated previously, dissatisfaction with medication
administration and management is the number one source of complaints received by the Aged Care
Complaints Commissioner.467
The incidence of medication-related problems is well documented.468 For example, one study found
that 96 per cent of aged care residents participating in the trial were considered to have at least one
medication-related problem,469 while another study found 44 per cent of patients were prescribed at
least one potentially inappropriate medicine.470 Several aspects of care under the control of
residential care homes impact medication management, including nursing staff awareness of the
adverse effects of medication, and ineffective medication incident reporting.471, 472
463
Victorian Government submission to the Senate Community Affairs Reference Committee Inquiry, p.12.
464
Coleman, E.A., 2003, 'Falling through the cracks: Challenges and opportunities for improving transitional
care for persons with continuous complex care needs', J Am Geriatr Soc, Vol. 51(4):549-55.
465
Morphett, J., et al., 2014, 'Shortfalls in residents' transfer documentation: challenges for emergency
department staff', Australasian Emergency Nursing Journal, Vol. 17, pp. 98--105.
466
Somers, M., et al., 2010, 'Quality use of medicines in residential aged care', Aust Fam Physician, Vol. 39, pp.
413-416.
467
Complaints Commissioner, Annual report 2016-17, p.19.
468
Roughhead, L., Semple, S., Rosenfeld, E. and Australian Commission on Safety and Quality in Health Care,
2013, Literature review: Medication Safety in Australia; Community Affairs References Committee, 2014, Care
and management of younger and older Australians living with dementia and behavioural and psychiatric
symptoms of dementia (BPSD) report.
469
Nishtala, P.S., et al., 2011, 'A retrospective study of drug-related problems in Australian aged care homes:
medication reviews involving pharmacists and general practitioners', Journal of Evaluation in Clinical Practice,
Vol. 17(1), pp. 97-103.
470
Stafford, A.C., Alswayan, M.S. and Tenni, P.C., 2011, 'Inappropriate prescribing in older residents of
Australian care homes', Journal of Clinical Pharmacy & Therapeutics, Vol. 36(1), pp. 33-44.
471
Jokanovic, N., et al., 2016, 'Why is polypharmacy increasing in aged care facilities? The views of Australian
health care professionals', J. Eval. Clin. Pract., Vol. 22, pp. 677-682; Hansen, R.A., et al., 2010, 'Patterns in
141
However, despite these issues, the number of claims for Residential Medication Management
Reviews has decreased by approximately 18 per cent between 2008-09 and 2015-16.
Improving the effectiveness of accreditation guidance
Longstanding issues with coordination of resident transfer between residential aged care and acute
care led the ACSQHC to pilot strategies to address this.473 The ACSQHC subsequently developed a
toolkit to assist residential services to prepare standardised information.474
However, while resident transfers are mentioned in the Results and processes guide, which
surveyors use to assess compliance with Outcome 2.4: Clinical care, compliance with this
standardised approach to transmission of clinical information is not included in the guide.475 The
ACSQHC, the Department of Health and the new Aged Care Commission should work collaboratively
to review this guidance material to assess its applicability as guidance for the standardisation of
clinical documentation for residents being transferred to hospital. Compliance with these
approaches should then be embedded in accreditation.
Similarly, ongoing issues arising from polypharmacy and medication management need to be more
effectively addressed in accreditation. The Department should revise the Guiding principles for
medication management in residential aged care and the accreditation process should require
providers to demonstrate how they conform with these principles.476 We recommend that a
resident medication management review be conducted on admission for residents to a residential
aged care facility, following hospitalisation, upon deterioration of medical condition or behaviour, or
upon any change in medication regime.
Care coordination with hospitals and medication management are two examples of areas in which
there are known concerns with quality of care, and for which more thorough adoption of existing
detailed guidance to support the Standards should help improve outcomes. This approach can be
applied in other areas where there is both clinical and non-clinical evidence-based good-practice
guidance available.
Review and improvement of the Standards
Regular review of the Standards and their supporting guidance material is necessary for continuous
quality improvement to occur system-wide. This should include engagement with consumers, review
of complaints data, and incorporation of the latest academic research and evaluation as part of
ongoing review of both the Standards and their supporting guidance documentation.
nursing home medication errors: disproportionality analysis as a novel method to identify quality
improvement opportunities', Pharmacoepidemiol Drug Saf., Vol. 19(10), pp. 1087-1094.
472
Hansen, R.A., et al., 2010, 'Patterns in nursing home medication errors: disproportionality analysis as a
novel method to identify quality improvement', Pharmacoepidemiol Drug Saf., Vol. 19(10), pp. 1087-1094.
473
Australian Commission on Safety and Quality in Health Care, 2011, External Evaluation of the National
Clinical Handover Initiative Pilot Program: Final report
474
Australian Commission on Safety and Quality in Health Care, 2011, Implementation Toolkit for Clinical
Handover Improvement.
475
AACQA, October 2014, Results and processes guide, p. 36.
476
Department of Health, 2012, Guiding principles for medication management in residential aged care
facilities.
142
The accreditation process also needs to give greater emphasis to quality of life and to ensuring
providers deliver care consistent with consumer expectations. Here it can be harder to measure
compliance, but it should still be possible to recognise good performance and to identify and
validate preferred models of care and staffing.
Systematic reviews of aged care quality consistently indicate that quality of life is a high priority for
people in residential care. Relevant factors include the need for sufficient time with staff,
importance of a home-like environment, and the development of relationships with staff.477
Recent studies highlight the need for consumer engagement in revision of the Standards:
Stakeholders display strong support for consumer engagement as an overarching principle,
while voicing resistance to the way it is currently mandated through accreditation
programmes ... Based upon our findings, it is clear that while the requirements of standards
are vital, greater inclusion of consumers in standards revision processes, and the assessment
of [health service organisations] performance against revised standards, may also be worth
considering, to enhance credibility of programmes.478
This advice is equally relevant to aged care. The Quality Agency has made progress in this area with
its consumer experience reports. Work should continue to ensure that consumer preferences are
translated into practice guidance to support compliance with the Standards.
Accreditation processes have remained generally unchanged over the past 20 years. Updating the
accreditation process is crucial if it is to meet its objectives and improve its reliability:
The Accreditation process has been a valuable addition to Aged Care and has greatly assisted
in developing a continuous improvement culture. Given that customer expectations, control
and awareness have changed over the past 20 years, it is time for the system to be
modernised to better align with changes in the above, government policy and for residential
care shorter lengths of stay of customers, the processes of review need to be more reflective
of society's expectations.479
The nature of aged care is changing rapidly, with an increase in frailty, dependence and complexity
of health issues in people receiving residential aged care.480 As part of an evaluation of aged care
accreditation, Campbell Research & Consulting recommended that the Standards include a process
of regular review consistent with international best practice, to ensure they remain
contemporary.481 Periodic reviews of standards are commonplace in other systems. For example,
477
O'Keeffe, V., 2014, Client perceptions of quality care in aged care services, Centre for Work + Life, University
of South Australia.
478
Hinchcliff, R., et al., 2016, 'Levers for change: an investigation of how accreditation programmes can
promote consumer engagement in healthcare', International Journal for Quality in Health Care, Vol. 28(5),
p. 564.
479
Submission (ID#571698506).
480
Australian College of Nursing, Position statement: The role of registered nurses in residential aged care
facilities, July 2016.
481
Campbell Research & Consulting and Department of Health, October 2007, Evaluation of the impact of
accreditation on the delivery of quality of care and quality of life to residents in Australian Government
subsidised residential aged care homes, p. 95.
143
Australian Health Ministers have charged the ACSQHC with maintaining the NSQHS standards and
each version is reviewed within five years of introduction;482 ISO International Standards also
undergo a systematic review process at least every five years after publication to ensure they remain
up-to-date and globally relevant.483
This Review supports the recommendation in the Campbell report. We believe it is imperative for
there to be periodic review of the Standards, outcome measures and guidance material to ensure
that they are fit for purpose and reflect changes in best practice. This should occur every five years.
Periodic review could be done as a comprehensive review of the Standards. An alternative model
would be a rolling cycle of review of individual standards and of the good-practice guidance that is
used to support them. This model could allow a more even workload for the Department and the
Aged Care Commission, and allow deeper engagement with specialists in the relevant area.
Improve and assess clinical governance
Good clinical governance is essential to ensure that clinical care is delivered effectively and that staff
are supported and receive appropriate training. It requires that systems are in place to detect poor
clinical care within a residential aged care home, review the practices that contribute to it and drive
improvement.
The Single Quality Framework consultation paper on draft standards described clinical governance
as:
An integrated component of corporate governance in organisations that provide clinical care.
It encompasses the systems used by organisations, from Boards to the frontline clinical and
other workforce, to account to consumers and the community for assuming the delivery of
safe, effective, consistent, consumer-centred clinical care and for continuously improving the
safety and quality of clinical care and services.484
Despite its importance to the management of clinical care, the current aged care Accreditation
Standards make no reference to clinical governance. The Victorian Government, in its submission to
the Senate Community Affairs Reference Committee Inquiry, noted that:
Organisational clinical governance requires strengthening to improve aged care providers
accountability and consumer confidence. An appropriate clinical governance framework for
aged care providers in Australia should be developed and agreed, drawing on the well-
established frameworks elsewhere in health care.485
482
Australian Commission on Safety and Quality in Health Care, 2017, National Safety and Quality Health
Service Standards (second edition), https://www.safetyandquality.gov.au/wp-
content/uploads/2017/09/National-Safety-and-Quality-Health-Service-Standards-second-edition.pdf
483
International Organization for Standardization (ISO), 2017, Guidance on the Systematic Review Process in
ISO.
484
Department of Health, July 2017, Report on the outcomes of consultations on the single Aged Care Quality
Framework, p. 35.
485
Victorian Government submission to the Senate Community Affairs Reference Committee Inquiry, 2017.
144
As the health care needs of residents in aged care are becoming more acute and complex,486 the
importance of effective clinical governance is increasing. The previous section outlined evidence of
poor resident outcomes resulting from ineffective clinical care managed, at least in part, by aged
care services. There must be systems in place to ensure the delivery of safe, effective, high-quality
clinical care and services.
What are the problems with the current approach?
Clinical care is a critical component of the care delivered in aged care homes. The Australian College
of Nursing, for example, noted that registered nurses play an important clinical leadership role in
aged care homes. This role includes high-level clinical assessment, clinical decision-making, nursing
surveillance and intervention, service coordination, and clinical and managerial leadership required
to meet desired outcomes and to ensure the provision of high-quality care.487
While the Review accepts that this role is undertaken at times under the direction of external health
professionals, including an individual resident's general practitioner, registered and enrolled nurses
provide an array of clinical functions in aged care homes, many of them self-directed, and without a
clear clinical governance framework to guide them.
However, a view was also expressed during our consultations that increasing the rigour of clinical
care standards would turn residents' homes into sterile, hospital environments. We do not accept
that is a necessary consequence, and believe that the implementation of effective clinical
governance and clinical care processes go on behind the scenes, and are critical to residents
experiencing good-quality care.
Clinical governance needs strengthening
The Australasian College of Care Leadership and Management noted that while registered nurses
identify with being trained expert clinicians, they may not necessarily see themselves as managers or
leaders of people and resources, and some may be unprepared for the complex supervisory role in
residential care.488 Registered nurses need to be supported by, and have input into, a clinical
governance framework to enable them to deliver the highest level of care to residents.
The Oakden report illustrates the risks posed by ineffective clinical governance arrangements. The
report noted that the absence of clinical governance at Oakden was a critical reason for the failures
of care. Warning signs were not heeded, responsibility for clinical outcomes was not owned,
leadership was poor, education, training and professional development were seriously deficient,
486
Australian Institute of Health and Welfare, People's needs in aged care, Factsheet 2015-16, GEN Aged Care
Data. https://www.gen-agedcaredata.gov.au/Resources/Factsheets-and-infographics/Care-needs-
factsheet.pdf?ext=.
487
Australian College of Nursing, July 2016, Position statement: The role of registered nurses in residential aged
care facilities.
488
Australasian College of Care Leadership & Management, Submission to the General Purpose Standing
Committee No.3, Inquiry into Registered nurses in New South Wales nursing homes, pp. 18, 24.
145
there were no systems of continuous improvement, and important data was not used to drive
change.489
Dr Groves noted:
Throughout the Review and from almost all we interviewed there was no consistent view of
who was in charge of clinical outcomes in Oakden. The more we asked the more we heard
people say it was someone else. The Review went around and around hearing that it was
someone else who was at fault ...
Within the current arrangements, clinical governance seems to be viewed as something
separate to clinical practice and something that somebody else 'does' rather than being a
system for supporting clinicians to engage in monitoring and improving their practice, and
providing safe care; this has resulted in limited clinical leadership of and engagement in the
safety and quality systems. There is no shared definition of what good care is or looks like;
consequently, roles and responsibilities with respect to safety and quality are not clear, and
functions are focussed on compliance activities (rather than improvement) and are
fragmented and not well understood.490
Ensuring clinical governance requirements are clear
Ultimately, responsibility for the provision of good-quality care lies with the provider.
Professionalism in aged care workers, a commitment to care and compassion, and effective clinical
governance of the organisations in which they work are critical to ensuring that residents are well
cared for. We believe that the aged care sector needs better guidance on effective clinical
governance.
It is encouraging that the draft standards released for consultation in early 2017 as part of the Single
Quality Framework include clinical governance as part of Standard 8: Organisational governance.491
This demonstrates the importance of clinical governance in the delivery of clinical care in residential
services. While this is a positive step, there needs to be clarity for providers around what good
clinical governance looks like.
When Dr Groves and his colleagues reviewed Oakden, they recommended that the service provider
establish a new clinical governance system, and that it be:
informed by the National Model of Clinical Governance Framework developed by the ACSQHC
and address each of its elements.492
The ACSQHC has developed a National Model Clinical Governance Framework for acute health
service organisations that has five components: governance, leadership and culture; patient safety
and quality improvement systems; clinical performance and effectiveness; safe environment for the
489
Groves A., et al, 2017, The Oakden Report, South Australia Department for Health and Ageing, pp. 89-90.
490
Groves A., et al, 2017, The Oakden Report, South Australia Department for Health and Ageing, pp. 73, 75.
491
Department of Health, 2017, Single Aged Care Quality Framework: Draft Aged Care Quality Standards
Consultation Paper, p. 32.
492
Groves A., et al, 2017, The Oakden Report, South Australia Department for Health and Ageing, p. 90.
146
delivery of care; and partnering with consumers.493 The framework is based on the NSQHS
standards, in particular the Clinical Governance Standard and the Partnering with Consumers
Standard, and is mandatory for health service organisations that need to meet the NSQHS standards.
As described by the ACSQHC, a clinical governance framework needs to: 494
define clinical governance
provide context about how clinical governance is an integrated component of corporate
governance
describe the key components of a clinical governance framework based on the NSQHS
standards
discuss the role of culture in supporting good clinical governance
outline the respective roles and responsibilities of, and essential partnership between,
patients and consumers, clinicians, managers, and governing bodies (such as boards) in
implementing effective clinical governance systems in health service organisations.
A parallel framework needs to be developed for residential aged care, as well as other aged care
providers that deliver clinical care services. The framework should address the roles, responsibilities
and scope of clinical care delivered in these settings. This should be incorporated in the guidance
material for the new aged care standards. The ACSQHC is an ideal partner to work with aged care
regulators, the sector and consumers to develop a clinical governance framework.
Recommendation 9. Ensure that assessment against Standards is consistent, objective and
reflective of current expectations of care.
Actions
(i) Strengthen capability of assessment teams
(ii) Clearly define outcome measures in standards guidance material, with reference to best
practice resources for clinical measures (i.e. clinical care and clinical governance)
(iii) Work with the Australian Commission on Safety and Quality in Health Care to develop a
clinical governance framework and clearer guidance on assessment of clinical care measures
to ensure they are fit for purpose for residential services
(iv) Review Aged Care Standards every five years to ensure that they are fit for purpose
(v) A Residential Medication Management Review must be conducted on admission for residents
to an aged care service, after any hospitalisation, upon deterioration of behaviour or any
change in medication regime
493
Australian Commission on Safety and Quality in Health Care, 2017, National Model Clinical Governance
Framework, p.11.
494
Australian Commission on Safety and Quality in Health Care, 2017, National Model Clinical Governance
Framework, p.4.
147
Chapter 9: Enhanced consumer-centred complaints
processes
This chapter examines the effectiveness of the current system for handling complaints about the
quality of residential aged care. The primary focus is the Aged Care Complaints Commissioner (the
Complaints Commissioner), however the need for improvements in complaints handling by
providers is also discussed.
The current legal and regulatory framework seeks to protect aged care consumers, including those in
residential care, by ensuring that they and their representatives can complain directly to a care
provider or to the independent Complaints Commissioner.
Effective complaints handling is a key mechanism for ensuring the voices of consumers and their
representatives are heard, and for identifying and remedying care problems. Complaints to an
independent agency may be 'the canary in the coal mine', serving as a warning that consumers are
at risk, and that regulator intervention is needed, if a provider fails to fix an identified deficiency in
care.
The Review's discussion of complaints handling is based on recurrent themes expressed in
submissions and during consultations, and is informed by the Complaints Commissioner's published
procedures, strategies and activity data.
Complaints and complaints-handling activity
The Complaints Commissioner's 2016-17 annual report covers the first full year of complaints-
handling data since the transfer of powers from the Department of Health to the Complaints
Commissioner from 1 January 2016.495 Some of the Complaints Commissioner's published data
reflects an aggregate of all the aged care programs.
The number of contacts received by the Complaints Commissioner in 2016-17 increased by ten per
cent over the previous year.496 This may be indicative of a greater awareness of the Complaints
Commissioner's role and ability to assist consumers.
The Complaints Commissioner publishes complaints-handling data spanning the five most recent
quarters on its website.497 A summary is included at Appendix D.
The usefulness of the data published by the Complaints Commissioner could be improved if all
related activity measures were separated by care type. This would allow a more comprehensive
495
Complaints Commissioner, Annual report 2016-17. The Excerpt from the Commissioner Principles 2015
[Appendix], sets out the activity the Commissioner must report on.
496
This includes the final six months of the Aged Care Complaints Scheme (July-December 2015) and the first
six months of the Aged Care Complaints Commissioner (January-June 2016).
497
https://www.agedcarecomplaints.gov.au/about/quarterly-reports/
148
appraisal of residential or other care type complaints activity. In addition, publication of other
activity indicators could increase the level of transparency in reporting. The next section addresses
this point in more detail.
More accessible information for consumers
The Complaints Commissioner has developed a range of information products to encourage and
facilitate making complaints. They include a series of videos, brochures, posters and fact sheets in a
range of different languages, including Indigenous languages, to better support special needs
groups.
The Complaints Commissioner also publishes a range of resources for providers, including industry
alerts, presentations and a complaints-handling guide, consistent with the Commissioner's role in
educating the sector on rights and handling processes.
Several respondents to the Review indicated that access to complaints resources and information
needs to be improved. One carer suggested:
Make the process and the existence of the Aged Care Complaints Commissioner more
publicly well-known, and publicly accessible and easier to use.498
Many aged care residents have limited online access or familiarity with how to make a complaint,
which suggests the need for complaints materials to be clearly visible within each residential facility.
The size and positioning of complaints information within a facility contribute to their accessibility.
An aged carer observed:
More visible signs for residents, family/visitors should be on display in nursing homes with
clear instructions on how to make a complaint through the proper channels. As it is, the tiny
posters put in out of the way places are not helpful.499
Improving the culture and transparency of complaints
handling
Potential barriers to raising complaints
We examined potential barriers to raising complaints. The Aged Care Complaints Commissioner
noted: "[M]any people who could complain don't."500
The decision by a consumer or representative not to complain is influenced by a range of factors,
including the ease of raising complaints. Some respondents report being daunted by the process of
making a complaint, and need help to lodge the complaint and identify the issues involved.
498
Submission (ID#904826044).
499
Submission (ID#730234568).
500
Complaints Commissioner, Submission to the Senate Community Affairs References Committee inquiry,
p. 8.
149
Consumers may also be concerned about:
• how a complaint would be received--will it be taken seriously and help solve a problem?
• choosing the best person to complain to:
- individual facility staff
- provider management
- an external body such as the Complaints Commissioner
- police
- an advocacy body
- someone else?
For consumers who are older, frailer and more vulnerable, knowing where and how to complain may
present a substantial or even insurmountable barrier:
While complaints handling processes are improving they have remained reactive and reliant
on informed consumers with the capacity and courage to complain.501
Red tape
A view was expressed in some submissions (from consumers and providers) that the complaints
process involves onerous administrative requirements or 'red tape', which may be a deterrent. Bupa
Aged Care Australia noted:
The one size fits all approach to complaints, where the onus is on the provider to justify their
actions, even when they are in line with Accreditation Standards, creates a great deal of
administrative burden for all involved thereby taking providers away from delivering high
quality care.502
Many family members do not know how to make a complaint and / or find the process too onerous
or too bureaucratic.
Fear of reprisals
By far the most frequent issue raised as a barrier to making a complaint was the fear of reprisals.
This was raised not just by residents and families, but also by residential aged care staff and
professionals who have observed practices that they find inconsistent with the provision of quality
care. One aged care advocate recalled being asked by a resident not to complain on their behalf:
The Veterans and War Widows who previously - when they were in their own home - had full
access to all the DVA entitlements through the Rehabilitation Appliance Program. This included
an unlimited supply of incontinence pads. Once in the RACF they are told they will only be
supplied the same number as all the other patients. In the complaints lodged that number was
2 in a 24 hour period. This was regardless of need.
501
Victorian Government, Submission to the Senate Community Affairs References Committee, p. 10.
502
Bupa Aged Care Australia submission (ID#95926361).
150
The complainants were in fear of retribution and would not allow me to disclose their name or
their location. This made it difficult to resolve.503
Two peak consumer bodies were among those expressing concerns about residents and their
families' fear of adverse consequences should they voice complaints. Their concerns highlight the
particular significance complaints have within the special needs groups, including in some cases, a
culture of not complaining. According to the Multicultural Communities Council of Illawarra:
It is not part of the culture within many CALD communities to make complaints. In addition
many do not know how to go about making a complaint and will rely on others for assistance.
Those that do know about the complaints process and how to go about it have commented
about their fear of retribution for their loved one who needs to remain in care.504
The Combined Pensioners and Superannuants Association also commented on fear of retribution:
Many clients are fearful of speaking out or making a complaint due to fear of retribution from
the aged care provider or a worker, or out of not wanting to rock the boat.505
Staff are also limited in their capacity to blow the whistle or speak out when issues arise as they may
face dismissal for doing so. There must be avenues available to clients, their supporters and aged
care staff to provide feedback anonymously.
Of concern was the number of respondents highlighting the fear of reprisals by providers against
aged care workers who raise complaints. Fifty-seven per cent of aged care workers who responded
to this Review saying that they decided against making a complaint, cited fear of retribution as the
reason.
The Complaints Commissioner readily acknowledges the difficulties that confront residents, families
or staff, including their fear of reprisals, and has attempted to address this. Complainants can
request that their concerns (all or in part) be treated with confidentiality or, alternatively, that the
complainant remains anonymous. Those who choose anonymity can also elect to use a pseudonym.
While residents and staff who fear reprisal are encouraged to raise their concerns, the real problem
lies within the culture of some provider organisations. This needs to change, as COTA indicates:
Change the culture of complaints from 'fear of retribution' to 'a normal and welcome part of
customer service'.506
Unresponsiveness of providers
Some submissions gave examples of providers who appeared ambivalent to the concerns that were
raised with them. One example was received from the son of an aged care resident, who is also a
residential facility manager:
503
Australian Federation of Totally & Permanently Incapacitated Ex-Servicemen & Women Ltd submission
(ID#152931135).
504
Multicultural Communities Council of Illawarra submission (ID#312703087).
505
Combined Pensioners & Superannuants Association, submission (ID#360932844).
506
COTA Australia submission (ID#743548634).
151
As I am a manager at a residential care facility I am aware of how I could make a complaint.
As a family we had been concerned about small things that had been missing from [my
father's] care for a while and my sister who lives nearby and visits regularly had felt their
concerns were not being met even after speaking to the RN and care staff.
It was disappointing that I had to eventually make a complaint in writing instead of the facility
looking at its practices and making changes before the written complaint.507
Aged care providers with a genuine commitment to consumer-centred care and improvement
recognise that mistakes happen and complaints matter. Rather than fear the consequences, they
value learning from complaints, and embrace open disclosure, apology and careful attention to
analysing and rectifying problems.
Aged care providers are 'service' businesses. They should expect that, from time to time, their
consumers' (residents') expectations will not be met. How organisations react to residents'
complaints is telling. As discussed below, there is a case for naming unresponsive providers in
certain circumstances.
Addressing the problem of unresponsive providers
A significant majority of aged care providers willingly accept their responsibilities to residents and
their families.
However, not all providers are responsive to complaints or to interventions by the Complaints
Commissioner. Some put barriers in the way of attempts by the Commissioner to investigate serious
complaints:
In a small number of cases approved providers are reluctant to assist with the resolution of a
complaint. This does not happen often but it can take the form of delaying or refusing to
provide documents or refusing to acknowledge failure and correct it and apologise for it.508
Practices of this kind are inconsistent with the responsibilities of providers under the Act, which
requires their compliance with directions received from the Complaints Commissioner. More
broadly, they are inconsistent with a culture of openness and cooperation in complaints handling.
While existing legislation gives the Complaints Commissioner power to require a provider's
cooperation, it does not provide enforcement or compliance powers. As the Commissioner notes:
We cannot compel approved providers or other agencies and organisations to allow us on
premises or to provide information. We rely on good will and co-operation to provide us with
the information we need to examine a complaint thoroughly.
If an approved provider fails to comply with a direction or directions, the Commissioner must
notify the Department. The approved provider will be referred to the Department for
507
Submission (ID#979404399).
508
Complaints Commissioner, Submission to the Senate Community Affairs References Committee, p. 7.
152
consideration of compliance action and any further action is up to the Department. At this
point, the Commissioner can do little else for the complainant.509
Depending on the circumstances, the Complaints Commissioner's referral to the Department will be
accompanied by a substantial amount of documentation setting out the substance of the matter.
This then needs to be considered by the Department before a decision to act or not act can be
made. The current processes appear slow and unwieldly, and unlikely to engender complainant and
public confidence with the aged care regulatory system.
One way to improve the culture of appropriate and responsive complaints handing in aged care
facilities would be to give the Commissioner the power to publicly name providers who create
barriers to legitimate complaints handling as a non-compliant organisation.
In New Zealand, the Health and Disability Commissioner has the power to name a provider within a
public report. The supporting policy for that Commissioner's power states that "in each case the key
question is whether the public interest in naming outweighs the potential harm to the provider".510
We propose that the Aged Care Complaints Commissioner be given a similar power to publicly name
a provider who is not sufficiently responsive to, or will not comply with, a direction issued by the
Commissioner in respect of a complaint.
It is anticipated that the Complaints Commissioner would develop a policy setting out relevant
factors in deciding whether it is in the public interest to name a non-responsive or non-compliant
provider. Clearly, fairness and due process will need to be accorded to any provider prior to
publication. In most cases, the prospect of adverse publicity will be sufficient to deter behaviour that
is not in keeping with placing the welfare of residents at the centre of our system.
An open disclosure statement
In December 2013, Australian Health Ministers endorsed the Australian Open Disclosure Framework
(the Framework), developed by ACSQHC.511 The Framework is designed to enable health service
organisations and clinicians to communicate openly with consumers when their health care does not
go to plan.
We recommend that the Framework be adapted for the residential aged care setting. Many key
elements of the Framework are relevant to aged care, including:
• open and timely communication
• acknowledgement
• apology and expression of regret
509
Complaints Commissioner, Submission to the Senate Community Affairs References Committee, p. 7.
510
Health and Disability Commissioner (New Zealand), 2008, Policy document--naming providers in public HDC
reports, p. 2.
511
Australian Commission on Safety and Quality in Health Care, 2013, Australian Open Disclosure Framework -
better communication, a better way.
153
• supporting and meeting the needs and expectations of consumers, family and carers as well as
those in the facility providing the care
• integrating risk management including clinical risk and systems management
• good governance
• confidentiality.512
A new disclosure framework embedded within Accreditation Standards guidance material will
enhance the rights of care recipients and their families, in addition to formalising a requirement for
care providers.
The Review also notes the support for open disclosure within the proposed Single Aged Care Quality
Framework. Draft Standard 6 - Feedback and complaints includes the following rationale for
adoption:
For example, the requirement to demonstrate open disclosure aligns the standard with
contemporary practice regarding the principles of open communication and transparent
processes, including acknowledgement and apology when failings are identified.513
The Complaints Commissioner also promotes the benefits of open disclosure:
For a service provider, saying sorry when something has gone wrong is the right thing to do
morally, and it's the right thing to do for your organisation.
A good apology is not an automatic admission of guilt and nor is it laying blame. It is simply a
recognition that the service provided has not met expectations and things could have been
done better.514
Increasing transparency and timeliness in reporting
A key message heard during the Review, from a broad range of stakeholders and experts, is the
value of greater transparency in aged care information gathering and sharing. Leading international
aged care expert Eilon Caspi notes:
Greater transparency becomes possible by introducing a specific data system to report. The
benefits of transparency are an increase in the accountability among individual nursing homes,
providers and the sector as a whole. This should translate into improvements in the quality of
care. An important property of public reporting is to have information that is user-friendly and
easily accessible to consumers, care advocacy organisations, policy makers, legislators, and the
512
Australian Commission on Safety and Quality in Health Care, 2013, Australian Open Disclosure Framework--
better communication, a better way, pp. 12-13.
513
Department of Health, 2017, Single Quality Framework draft aged care quality standards consultation
paper, p. 28.
514
Aged Care Complaints Commissioner, 2017, Rae's reflections--the power of an apology,
https://www.agedcarecomplaints.gov.au/raes-reflections-the-power-of-an-apology/.
154
media. This shared knowledge increases the likelihood for well-coordinated policy and
preventive interventions.515
Increasing the transparency and timeliness of information should result in improved complaints
handing.
The Complaints Commissioner already publishes a set of key performance indicators in addition to
the required activity reporting. These indicators measure the effectiveness of internal processes and
have been self-assessed by the Commissioner as met in 2016-17.516
However, the Commissioner's current reporting results in a minimal level of transparency. Other
measures of the Commissioner's activity could usefully be published to add to the level of
understanding and discussion about quality of care and complaints in residential aged care.
We suggest that additional aggregated and de-identified activity measures be published by the
Commissioner, which could include:
• the date the complaint was raised and registered with the Complaints Commissioner
• the type of process used by the Commissioner e.g. early resolution
• whether the complaint concerns a person with special needs
• whether an advocacy service has engaged with the complaint / complainant
• the subject e.g. clinical care / quality of life; and the substantive issue involved, e.g. the
administration of medication / improvement in environment
• the status of the complaint (remains open / has been closed)
• whether the complaint has been referred to another agency and, if so, when the referred
agency is responsible for finalisation of all or part of the complaint, the date it was finalised
• whether regulatory action has been imposed as a result of the complaint.
Greater transparency and utility of complaints data could be achieved with more frequent,
accessible activity reporting. To this end, we suggest the Commissioner publish an online activity
report, which is updated every month. The online report would provide both an easy-to-view
summary of accessible complaints-related data and capture low-level resolution.
Strengthening consumer assistance and advocacy
The involvement of other organisations--referrals
The Complaints Commissioner has a primary responsibility for independently resolving complaints
involving aged care services. However, in exercising this responsibility, the Commissioner may
determine a need to involve another organisation that may be better placed to deal with the issue.
515
Caspi, E., 2017, 'Commentary - national register of events causing serious resident harm', Victorian Institute
of Forensic Medicine, Residential Aged Care Communique, Vol. 12(3), p. 6.
516
Complaints Commissioner, Annual report 2016-17.
155
While referrals by the Complaints Commissioner to other organisations are appropriate in some
cases, the complainant may receive inadequate feedback about the status of their complaint as a
result. This statement is included within one of the Commissioner's consumer fact sheets:
Sometimes we will not be able to discuss a referral to another organisation with you as
information about the referral is protected information under the Aged Care Act 1997. While
the feedback we provide you may be limited, please be assured that we have taken your
concerns seriously and have referred your complaint to the organisation best placed to deal
with it.517
Where other organisations become involved in complaints, they will usually provide the Complaints
Commissioner with a letter advising the outcome of their review at the conclusion of their
investigation.518 However, for reasons that may include matters outside the Commissioner's scope,
protected information and / or privacy considerations, there may be little detailed feedback
provided to the Commissioner or that the Commissioner can pass to the complainant.
The Complaints Commissioner may encourage the complainant to take the matter directly to that
other organisation. In such cases, the Commissioner may take no further action and end the
resolution process.519
Where possible, the Commissioner will attempt to link the complainant with an advocate or
advocacy organisation. However, the Review heard that this may not always produce the desired
outcome:
The Complaints Commissioner referred a client to us when they did not have a clear
understanding of ... our organisation's ability to assist the individual.520
It is obviously important that care is taken in referring a complainant to another organisation, both
to ensure an issue that properly lies with the Complaints Commissioner is not referred away, and
that the recipient is an appropriate body to handle the referred matter. Having to deal afresh with
new and unfamiliar organisations would be demotivating or stressful for residents and families.
Aged care consumers need to be confident that the Complaints Commissioner will assist them
through to the conclusion of their complaint.
The Complaints Commissioner's policies and procedures should be reviewed and amended where
necessary to reflect:
517
Aged Care Complaints Commissioner, 2017, Fact sheet - referrals to other organisations,
https://www.agedcarecomplaints.gov.au/resources/factsheets/factsheet-referrals-to-other-organisations/
518
Protocols for information sharing are generally set out within individual memorandums of understanding
between the Complaints Commissioner and other organisations.
519
Australian Government, Complaints Principles 2015, Explanatory Statement, Section 8 - No further action
on an issue and Section 14 - Ending resolution process,
https://www.legislation.gov.au/Details/F2015L02125/Explanatory%20Statement/Text
520
Advocare Inc submission (ID#1069639159).
156
• that the Commissioner will link complainants with appropriate advocates where they are
available, but will remain the complainant's primary contact in respect of the progress of their
complaint where the complainant accepts that offer by the Commissioner
• that complainants who elect to have the Commissioner act as their primary contact receive
appropriate information on the progress and finalisation of their complaint either from the
Commissioner or from the organisation the complaint is referred to
• that the outcomes of referred complaints will be tracked and reported on, including when
they are finalised by the organisation they are referred to.
Strengthening advocacy within the Community Visitors Scheme
The Australian Government's Community Visitors Scheme funds organisations referred to as
'auspices' to coordinate volunteers to visit the residents of aged care facilities and home care
consumers. The scheme aims to support people who are socially isolated and whose quality of life
would be improved by friendship and companionship. In 2016, the Department commenced a
review of the scheme, which was completed in 2017. The final report presents a range of options to
enhance the scheme and align it with other aged care support programs within the context of
current and ongoing aged care reforms.521 The government is currently considering these options.
The Community Visitors Scheme also incorporates state-based network members who play a
significant role in facilitating collaboration, information sharing and training for the scheme's
auspices in their jurisdictions.
According to Department of Health guidance material, the responsibilities of visitors include:
• notifying the scheme's auspice coordinator of any accident or incident that occurs while
visiting
• reporting unsafe visiting environments
• exercising a duty of care at all times.522
A volunteer visitor cannot become involved in investigating or following up complaints. If a visitor
becomes concerned about some aspect of a resident's care, they should seek advice from their
scheme's auspice coordinator. The auspice is responsible for notifying the provider.523
While a visitor in the scheme has a responsibility to inform the auspice organisation of any concern
they may have, there appears to be little guidance for how an auspice should respond to the visitor's
concerns.
521
Department of Health, 2017, Review of the Community Visitors Scheme: final report,
https://agedcare.health.gov.au/support-services/review-of-the-community-visitors-scheme-final-report
522
Department of Health, 2017, Community Visitors Scheme frequently asked questions: visitors/auspices.
https://agedcare.health.gov.au/older-people-their-families-and-carers/community-visitors-
scheme/community-visitor-scheme-cvs-frequently-asked-questions-faqs.
523
Department of Health, 2017, Community Visitors Scheme frequently asked questions: visitors/auspices.
https://agedcare.health.gov.au/older-people-their-families-and-carers/community-visitors-
scheme/community-visitor-scheme-cvs-frequently-asked-questions-faqs
157
In some cases, for example when a visitor has not been informed of a resident's desire for
confidentiality, it may be inappropriate for an auspice to report the visitor's concerns to the
provider. In addition, the matter may be further complicated where the auspice organisation is also
the provider of care.524
We note the findings of the ALRC report into elder abuse:
The Department of Health (Cth) should develop national guidelines for the community visitors
scheme. The guidelines should include policies and procedures for visitors to follow if they have
concerns about abuse or neglect of care recipients.525
We note that a range of sectors in the states and territories also have official visitor schemes that
focus on advocacy and rights protection for vulnerable people, such as people with disability,
children in care, and people in mental health services.
A consumer peak body remarked on the value of visitors in providing a further safeguard for system
quality, drawing the Review's attention to the ALRC report in respect of an official visitors scheme:
In terms of implementing a broader improvement to quality, COTA believes there is merit in
exploring an official visitors scheme to achieve greater early warning systems in monitoring
and indeed complaint handling.
As the ALRC Discussion Paper said, the official visitors scheme 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'.526
The ALRC concluded that the current focus should be on continuing to support consumer advocacy
services. However, it recognised that an official visitors scheme might be something to be
considered in future, depending on a review occurring in the disability sector:
The NDIS Quality and Safeguarding Framework intends to undertake an independent
evaluation of state and territory visitors schemes to consider how such schemes might
integrate with other oversight mechanisms. Results of this evaluation should inform future
consideration of the utility of an official visitors scheme in aged care.527
We note the ALRC findings and recommend that once established, the Consumer Commissioner, in
partnership with the Complaints Commissioner, clarifies processes for reporting the concerns of
visitors participating within the Community Visitors' Scheme including:
• setting out a clear policy and guidelines for organisations funded to auspice the scheme
524
The Department of Health advised the Review that a number of organisations funded to auspice the
scheme are also aged care providers (Personal communication, 28 August 2017).
525
Australian Law Reform Commission (ALRC), 2017, Elder abuse--a national legal response, ALRC report 131.
526
COTA submission (ID#743548634).
527
Australian Law Reform Commission (ALRC), 2017, Elder abuse--a national legal response, ALRC report 131.
158
• making clear the existing duty of care visitors and auspice organisations have under the
scheme in raising and reporting concerns or complaints related to the provision of residential
care for an individual or group of care recipients (and other forms of aged care)
• setting out, within policy and guidelines, the options available to the scheme's visitors and
auspice organisations for raising concerns including by
• the auspice making direct and early contact with the Complaints Commissioner
• where the auspice is also an aged care provider, referring the visitor's concerns to the
auspice network (state level) as soon as possible for the network's early referral to the
Complaints Commissioner.
Recommendation 10. Enhance complaints handling.
Actions
(i) Increase the powers of the Complaints Commissioner
(ii) The Complaints Commissioner will modify the Australian Open Disclosure
Framework for residential aged care
(iii) Residential services will adopt the modified open disclosure framework
(iv) Complaints Commissioner will develop an online register of all complaints received
and their handling
(v) The Complaints Commissioner will track and publish outcomes of complaints
referred to other bodies
(vi) Clarify processes for reporting concerns raised by visitors participating in the
Community Visitors Scheme
159
Appendix A: Terms of reference
Terms of reference were established for the review of the Australian Government's regulatory
activities applying to quality of care in aged care residential facilities.
The review was not to review the care provided at the Makk and McLeay wards at Oakden Older
Persons Mental Health Service (Oakden) and relevant to Commonwealth aged care regulatory
processes.
The review examined and advised on:
why, prior to its sanction on 17 March 2017, Commonwealth aged care regulatory processes
did not adequately identify the systemic and longstanding failures of care at the Makk and
McLeay wards documented in the Oakden report.
what improvements to the Commonwealth aged care regulatory system would increase the
likelihood of immediate detection, and swift remediation by providers, of failures of care such
as those identified in the Oakden report.
This could include changes to:
the legislative framework for the provision of aged care in Australia, including the Aged Care Act
1997 and the Australian Aged Care Quality Agency Act 2013
the administrative policies and approaches of the Department of Health, the Aged Care
Complaints Commissioner, and the Australian Aged Care Quality Agency
reporting requirements, whether voluntary or mandatory, for residential aged care staff and any
other care professionals involved in the provision of care in a residential setting
engagement between the Commonwealth aged care regulatory agencies and other relevant
regulatory agencies including those administering healthcare standards
any other matter that the reviewers consider relevant to the purpose of the review, including
any other measures in addition to current statutory arrangements that may strengthen the
protection of residents.
Having regard to recent findings in respect of the Makk and McLeay wards at Oakden, the review will
examine the processes managed by all Commonwealth agencies involved in regulating the quality of
care in residential aged care facilities, as follows:
the Department of Health
the Aged Care Complaints Scheme, managed by the Department of Health until 1
January 2016
the Aged Care Complaints Commissioner
the Australian Aged Care Quality Agency.
160
Appendix B: Process of the review
An independent review of Commonwealth aged care regulatory processes was announced by the
Minister for Aged Care, Hon Ken Wyatt MP, in response to the Oakden report which detailed failures
in the quality of care delivered at the Oakden Older Persons Mental Health Service (Oakden) in
South Australia.
The Review examined why regulatory processes did not adequately identify the systemic and
longstanding failures of care at the Makk and McLeay wards documented in the Oakden report. The
Review also identified improvements to the regulatory system that would increase the likelihood of
immediate detection, and swift remediation by providers.
Independent reviewers
The Review was led by Ms Kate Carnell AO, a veteran public administrator and regulator, in
conjunction with Professor Ron Paterson ONZM, an international expert on patients' rights,
complaints, health care quality and the regulation of healthcare professions.
The Reviewers were supported by a Secretariat in the Department of Health.
The Review examined and reported on Commonwealth regulatory practices relating to monitoring
the quality and standard of care in residential aged care facilities. The review was not intended to
investigate and resolve individual cases--that is the role of the Aged Care Complaints Commissioner.
However, individuals' experiences of care helped identify opportunities to improve Commonwealth
regulatory processes.
Consultation strategy
The reviewers used several strategies to conduct the Review. They included a public consultation
process and targeted consultation with key aged care stakeholders, including consumer and service
provider peak bodies. Meetings were held with regulatory bodies, including the Department of
Health, the Aged Care Quality Agency and the Aged Care Complaints Commissioner.
Information about the review was disseminated using:
the Department of Health Ageing and Aged Care website528
the Department of Health My Aged Care website529
the Department of Health Aged Care Providers newsletter
the Department's bulk information distribution message system
the Department of Health's Twitter account
528
https://agedcare.health.gov.au/quality/review-of-national-aged-care-quality-regulatory-processes
529
https://www.myagedcare.gov.au/latest-news
161
Minister Wyatt's media releases: 1 May 2017, 11 May 2017, 20 June 2017 and
14 August 2017530
a dedicated external-facing inbox: agedcarequalityreview@health.gov.au
Literature review
The Department engaged with KPMG to undertake a literature review examining the regulatory
processes that underpin the delivery of quality care in residential aged care facilities in Australia and
overseas. The literature review examined the benefits and challenges posed by Australia's current
regulatory model and key attributes of successful international and national regulatory systems.
Editing services
Hamilton Stone provided editorial and writing services for this report.
530
http://www.health.gov.au/internet/ministers/publishing.nsf/Content/the-hon-ken-wyatt-am-mp-media
162
Appendix C: Consultation summary
Targeted consultation
A multi-faced consultation approach was undertaken to ensure that the review was informed by the
collective and varied experience of policy-makers, regulators, academics, health and aged care
service providers, care recipients and their families and carers. Face-to-face and teleconference
meetings were held with:
Consumers and Aged Care workers
Families of former residents at the Oakden Older Persons Mental Health Service
Mr Shane Lyttle & Mrs Margaret Lyttle
Aged Care Regulators
Dr Nick Hartland, Valerie Spencer & Neil Callagher, Australian Government Department of Health:
National Aged Care Compliance Programme
Mr Nick Ryan, Chief Executive Officer, Australian Aged Care Quality Agency
Ms Rae Lamb, Ms Shona Moloney & Ms Viv Daniels, Aged Care Complaints Commissioner
Aged Care Organisations
Aged Care Sector Committee
Ms Andrea Coote, Chair, Aged Care Quality Advisory Council
Mr Tim Dixon, HammondCare
Ms Netty Horton, Salvation Army
Ms Fiona May & Mr Geoff Rowe, Older Persons Advocacy Network
Ms Andrea Matthews, mpconsulting
Mr Cameron O'Reilly, Mr Ross Johnson & Mr Andrew Sudholz, Aged Care Guild
Mr Sean Rooney, Leading Age Services Australia
Ms Pat Sparrow & Mr Darren Matthewson, Aged and Community Services Australia
Professor Graeme Samuel & Ms Maree McCabe, Alzheimer's Australia
163
Mr Ian Yates, Council on the Ageing Australia
Academics and technical experts
Adj/Professor Debora Picone, Dr Robert Herkes, Dr Nicola Dunbar & Margaret Banks, Australian
Commission on Safety and Quality in Health Care
Adj/Professor Mark Brandon OAM, Brandon Consulting
Professor Jeffrey Braithwaite, Australian Institute of Health Innovation, Macquarie University
Ms Robyn Coulthard, former Nurse Adviser to the Northern Adelaide Local Health Network
Emeritus Professor Rosalind Croucher, former Chair, Australian Law Reform Commission
Dr Stephen Duckett, Grattan Institute
Professor Joseph E Ibrahim, Health Law and Ageing Research Unit, Department of Forensic Medicine,
School of Public Health and Preventive Medicine, Monash University
Ms Robyn Nolan, National Council of Women (WA)
Mr David Tune, Chair, Legislated Review of aged care
Ms Lisa Triggs, London School of Economics, United Kingdom
Dr Catherine Yelland, Geriatrician, Redcliffe Hospital
Professor Merrilyn Walton, Professor of Medical Education (Patient Safety), University of Sydney
Professor Mike Woods, Centre for Health Economics Research and Evalution, University of
Technology Sydney
NOUS Group
Government officials
Australian Government Department of Health:
- Aged Care Access and Quality Division
- Aged Care Policy and Regulation Division
- Health State Network (NSW and SA)
- Dr Anthony Hobbs, Deputy Chief Medical Officer
- Adjunct Professor Debra Thoms, Chief Nursing and Midwifery Officer
Dr Aaron Groves, former South Australian Chief Psychiatrist
164
Ms Michele McKinnon, Director, Safety and Quality, South Australian Department for Health
Victorian Department of Health and Human Services
As well as meeting with key stakeholders, the reviewers conducted three consumer forums in
Brisbane and Melbourne.
Alzheimer's Australia and COTA supported the forums, helping to recruit a broad range of
consumers, family members and carers who could share their experiences with aged care quality
regulatory processes and provide their views on desired improvements.
We value the contribution every individual and organisation provided to the Review. We recognise
the courage of people who told their personal stories. We are grateful for the skills and experience
shared by peak organisations and academics. These contributions steered the direction of the
report.
Public consultation
Formal feedback was sought through an online survey on the Department's consultation hub, which
uses the Citizen Space platform designed with specific demographic questions to support analysis.
Questions were directed to respondents to identify aspects of aged care regulatory processes that
should be retained or changed. There were free-text boxes to ensure respondents had the
opportunity to describe their experiences and identify opportunities for improvement. Public
consultation opened on 19 June 2017 and closed on 24 July 2017.
To ensure that the process was comprehensive and accessible, people who had trouble using the
online survey process could send hard copy submissions or via email. The review secretariat then
manually entered these responses into Citizen Space on their behalf.
Notable features of the public consultation process were that:
there was strong interest in the survey. A total of 423 submissions were received, with 399
responses provided through the online survey tool.
76 per cent (N = 321) of respondents indicated that they agreed for their submissions to be
published.
69 per cent (N = 292) of responses came from individuals or organisations based in east coast
states (NSW, VIC, QLD); only four responses came from NT and seven from TAS.
17.5 per cent (N = 74) of respondents were organisations and 81.7 per cent (N = 345) were
individuals (three respondents did not respond to this question).
17.1 per cent (N = 72) of respondents live in rural or remote areas, 12.3 per cent identify as
people from culturally and linguistically diverse backgrounds. 4 per cent (N = 17) were Aboriginal
and / or Torres Strait Islander people. 2.4 per cent identified as lesbian, gay, bisexual,
transgender or intersex and 12.3 per cent (N = 52) identified as being financially or socially
disadvantaged.
37.7 per cent (N = 159) of respondents were aged care workers / professionals. 14.9 (N = 63) per
cent were family and / or carers for an aged care resident, and only 2.8 per cent (N = 12) of
responses came from aged care consumers.
165
What the submissions said
Focus of regulation
Retaining the practice of provider self-assessment against the Standards as part of the accreditation
process was identified as important for provider engagement with the process and quality
improvement. Providers also noted the importance of support from the Quality Agency, especially
for providers who are non-compliant, to help improve their quality of care.
Providers encouraged the continuation of Quality Agency support through support visits to facilities:
Extension of the accreditation period from 3 years to allowing for increased support visits to
ensure homes are maintaining standards.531
Sliding scale for accreditation periods can be based on previous record of compliance and
rewards those who exceed by a longer accreditation period. This approach could then enable
resourcing into services that need regular support.532
Stronger focus on consumer outcomes
There was a strong view that the accreditation process is too 'paper focused' and there should be a
greater focus on the engagement with consumers, families / carers and staff.
I think a lot of the evidence which has to be supplied is all very well but speaking for myself I
spend 80% of my time collecting data that will never be looked at but is done in case it is. I
would much rather spend my time monitoring the actual care being given.533
It was proposed that accreditation should focus on engagement with consumers, their families and
carers and the 'staff on the floor'. One respondent noted that accreditation should focus on whether
the provider was meeting the individual care needs of residents.
Accreditation should be less paperwork-focused, and more practical, ie more focus on
outcomes and consumer/carer involvement.534
Forty-six per cent of respondents [N=84] who identified as having reason to make a complaint about
aged care services, elected not to because of fear of retribution. A few respondents said that there
should be more interviews conducted privately with consumers, family / carers and staff, to address
this barrier to making complaints. One respondent also suggested that general practitioners should
be involved in the interview process. There was a strong view that the surveyors should be randomly
selecting whom they interview and residents' files to audit.
GPs should be included in the accreditation process as clinical/medical leads.535
531
Submission (ID#308648982).
532
Submission (ID#272875091).
533
Submission (ID#322970458).
534
Submission (ID#339723358).
535
Submission (ID#272875091).
166
The authenticity of input by residents and families into the accreditation process is a concern:
interviews should be conducted in a non-threatening environment away from the provider, to
allay any fears they may have of speaking candidly (additionally, interviews should not be
conducted in multi-person rooms).536
The selection of resident files for audit should be made by the accreditor and not the aged
care service, who could hand-pick only positive cases.537
Several respondents suggested that engagement with consumers and their family and carers should
occur by phone or email. Another respondent proposed that discussions with consumers be
conducted off-site.
Accreditation Agents should interview more residents or representatives at facilities for their
feedback. This should include emailing representatives or speaking to them by phone.
Perhaps interview some who have made complaints before or internal complaints for their
feedback.538
It was proposed that if consumer experience reports are to drive cultural change in residential aged
care, interviews with residents in each facility need to be conducted annually, rather than every
three years. It was proposed that a higher percentage of residents should also be interviewed during
site visits.
The newly introduced Consumer Experience Reports are not timely and do not offer providers
the opportunity to respond to consumers' observations. Providers would like to be able to
respond to consumers' experiences to demonstrate how they improved the quality in
response to observations made by consumers.539
LASA Members suggest that more frequent collection of consumer experience data may be
more meaningful than the current 3-yearly collection period.540
More effective performance monitoring
Forty-five per cent of respondents to the Review survey felt that current processes for the
accreditation of aged care homes were not effective. Fifty-one per cent of respondents were also
dissatisfied with processes for monitoring performance of aged care homes.
One aged care worker noted that scheduled visits created extensive stress for care staff who were
required to prepare for assessments and that this may be reduced by conducting unscheduled visits
instead.
The accreditation process should be retained but done on a basis whereby the Inspection is
done WITHOUT the prior knowledge of the visit. I have witnessed the lengthy ongoing
536
Submission (ID#1069639159).
537
Submission (ID#1069639159).
538
Submission (ID#985883601).
539
Submission (ID#883559093).
540
Submission (ID#883559093).
167
process by an [aged care facility], to prepare for the Accreditation inspection and of all the
false equipment and cleanliness that the facility went through to make a good impression.541
It was suggested that unannounced visits should happen both day and night, as well as on the
weekend to get a better sense of how care is delivered at contrasting times. The Quality Agency
should have a 'mystery shopper' that could be conducted by nursing students. Expanding the
Community Visitors Scheme to observe the quality of care delivered and report any incidents of poor
care - was also suggested.
... site visits by auditors who do not reveal their identity - such as a mystery agency worker,
to get the real picture of what care is really like.542
More "unplanned" visits should be considered. Out of hours or weekend visits should be
considered.543
Assessments should be carried out over a range of random time periods (evenings. nights
and weekends). Assessors should involve themselves in the usual care routines so they can
actually monitor care standards and resident health.544
There was a strong view that unannounced site visits should be retained, with particular support
from aged care workers.
As an experienced quality surveyor I'm well aware that a lower risk provider can, sometimes
almost overnight, become high risk due to changes in management, key staff, residents with
escalating care needs, etc. For such reasons, it's essential we maintain the requirement for
AT LEAST one unannounced visit per year.545
Many residents, relatives and staff (and sometimes even managers) over the years have told
me stories about how providers put in temporary fixes (including extra staffing) for
announced visits. Residents and relatives place their confidence much more in the process of
unannounced visits and I think there would be an outcry if the Agency dropped this
requirement.546
staff are under huge pressure from management at accreditation time some told what to say
if accreditation team want to speak to them.547
Supporting assessors to make objective assessments of quality
There was a strong view that accreditation visits should be longer, as surveyors may be reluctant to
find a provider non-complaint due to time restraints. One aged care worker noted that providing
insufficient time for thorough investigation during accreditation visits could undermine surveyors'
541
Submission (ID#218218674).
542
Submission (ID#673055120).
543
Submission (ID#504850188).
544
Submission (ID#617437173).
545
Submission (ID#346790910).
546
Submission (ID#346790910).
547
Submission(ID#124976532).
168
confidence in the defensibility of adverse findings about provider care, which may contribute to
conservative decision-making. It was also stated that accreditation needed to be more objective and
evidence-based.
In the state I work in, our staffing allocations in relation to home size have remained
unchanged over the years despite residents' care needs increasingly significantly over that
time. This means we're having to review more and more complex clinical information (verbal
and written) without having additional time or staffing to do so. In turn, this means we're
doing more superficial and rushed assessments which unfortunately means we're missing
problems and having less time to explore concerns, two factors clearly at play for Oakden.548
It was noted that there should be mandatory reporting of quality indicators, with support for more
quality indicators to be developed. Two respondents suggested that this information should be
published on the My Aged Care website. Respondents showed support for the use of quality
indicators for providers to benchmark their performance against similar services.
More Bench marking quality indicators and improved records so Board and families can
measure quality.549
Several respondents felt that assessors should have clinical training to enable them to investigate
the management of clinical care provided in facilities. They also suggested that a registered nurse
should be on each assessment team. There was also support for assessors to have training in mental
health, particularly for people living with dementia, and for more training generally.
Assessors should be experienced and current clinicians that know what to look for and where
to find it. Simply checking paperwork does not ensure a rigorous review of care standards
and resident outcomes.550
Assessors need better training, and serious investigations need to be resourced with more
medical authority and the capacity to gather first hand evidence. It should still be possible
within a strengthened Government regime for better performers to earn a more light handed
approach to their reaccreditation.551
More information for consumers on performance
There was a strong view that there is a lack of public information available about the rights,
responsibilities, the meaning of quality of care and the performance of residential aged care
facilities. The information that is available is not easy to understand.
A few respondents indicated that rather than simply defining minimum expectations for the quality
of care, the Accreditation Standards should be used to differentiate performance of providers. They
also proposed the adoption of a five-star rating system.
548
Submission (ID#346790910).
549
Submission (ID#1053395477).
550
Submission (ID#617437173).
551
Submission (ID#991551124).
169
Better information to help providers meet their obligations
It was suggested that the Standards were too vague; the language is unclear and leads to subjective
interpretation.
Vague wording in the standards such as adequate staffing and adequate training should be
replaced by a quantifiable description. Who judges what adequate means??552
Compliance
There was a variety of suggestions as to how non-compliance could be managed better. It was
proposed that sanctions should be harsher to encourage compliance with the Standards. However, it
was also suggested that sanctions should be removed and replaced with more frequent visits to non-
compliant providers:
The Guild considers the use of sanctions as a penalty for extreme cases to be appropriate, if
consistently and fairly applied, but notes the importance of a proportionate response by
regulators. The Quality Agency could use a more collaborative approach to assist providers
improve processes and procedures to complement the application of sanctions.553
It was noted that it was important to maintain a proportionate, risk-based response to provider non-
compliance with the Accreditation Standards:
We also support moves toward a risk-based approach to regulation as we believe this will
help drive service excellence, continuous improvement and reduce red tape. In other words,
we call for a system not solely focused on technical compliance and enforcement, but one
designed to drive innovative practice and subsequent improvements in quality.554
Complaints handling
Many respondents felt there was a lack of clarity around the complaints-handling process. Fifty-two
per cent of respondents to the Review survey indicated that they experienced difficulty finding
information about the complaints handling process:
Finding information when you are working as an advocate (no government funding in my
case) is relatively easy. However relatives (residents' representatives) who I assist, or hear
from, often lack an understanding of the process. Where they have acted on their own they
typically have made a verbal complaint and they have either not been told, or have failed to
understand, the process options available to them.555
It should also be easier to access information to make complaints and who we can talk to
about the complaint.556
552
Submission (ID#339723358).
553
Submission (ID#1032742486).
554
Submission (ID#793278997).
555
Submission (ID#322319626).
556
Submission (ID#632417958).
170
Many respondents had no confidence in the complaints-handling processes:
After my complaint to the Aged Care Complaints hotline the Facility provided me with a
report. It contained a number of assertions I knew to be incorrect, including the suggestion
my mother had pulled curtains on herself.
The Aged Care Hotline said as my initial complaint had been satisfied and my further
complaint referred to a systemic staffing issue they were unable to help me.557
On both occasions the provider was given a gentle slap on the wrist. Initially it was noted
that the provider would try alternative interventions and on the second occasion the provider
agreed to remind staff of their obligations and hold a staff meeting to discuss the issue. The
complainant felt let down, betrayed by the Complaints Scheme.558
It took ten days for the complaints officer to contact me. They showed little insight into the
situation we were alerting them to and were reluctant to take any immediate action. The
complaints scheme provided details of the complainant to the provider which resulted in us
losing our service contract with the provider. Frustrated with the process, we withdrew our
involvement in the case and the matter was not pursued further by the department.559
Fear of reprisal was a common reason given for not making a complaint. Those fearing reprisals were
principally aged care workers / professionals and family or carers of an aged care consumer:
Every time we verbally complain to management about a situation we get bullied into
accepting it as normal. This includes (at the moment) 2 staff dealing with 16 wandering and
aggressive dementia residents with no supervisor on site.560
There is that fear factor of retribution present in many homes and I have found that if we try
to make a complaint, we are often shut down by management. Complaints are often not
treated as confidential which further complicates matters and I have personally experienced
a manager who was the workplace bully.561
Respondents indicated that it was important to keep the ability for residents, families and staff to
make anonymous complaints. However, it was also noted that providers usually do their best to
resolve issues and that anonymous complaints should never be accepted. Individuals who provide an
anonymous complaint do not receive feedback on the outcome of the investigation:
"Informants" are told their names will be suppressed but they aren't and there are serious
ramifications for dedicated carers trying to do the right thing for the elderly...also
management are forewarned giving them time to have those who would be willing to talk
truthfully off duty.562
557
Submission (ID#16842646).
558
Submission (ID#16842646).
559
Submission (ID#322319626).
560
Submission (ID#617437173).
561
Submission (ID#490060676).
562
Submission (ID#23768430).
171
There needs to be some way of ensuring that consumers/carers are not vilified for making
complaints. Despite assurances to the contrary, there are repercussions for complaining, such
as my experience of a DON writing to family members threatening them with a ban to enter
the facility if they continued to put forward complaints.563
Many people had trouble finding information on complaint processes. There is a need for better
access to education programs promoting the roles and responsibilities of regulatory bodies and
advocacy programs, so that consumers and service providers better understand the safeguards
available to address concerns.
The need for more accessible, plain English information on complaint processes was also highlighted.
There should be access to translation services for people from culturally and linguistically diverse
backgrounds:
There is a need for a plain English brochure which sets out the options, especially their right
not to accept the 'quick resolution' option.
Submitters thought that visits from independent advocacy organisations could improve
understanding of complaints-handling processes.
Data sharing and communication between organisations
It was suggested that the communication and data sharing among regulators should be improved:
A system enabling Australian Government authorities to be alerted to possible performance
shortfalls in aged care facilities, including via reports by health professionals, local
authorities and visitors, and via complaints from residents, families and consumer
advocates.564
It was noted that the Quality Agency's role should remain independent of the Department. Similarly,
the Aged Care Complaints Commissioner should remain independent:
My advice would be to re-structure and outsource Quality and Compliance using, for example
the International Standard 1900 Series Quality Management (processes include Business
Structure and Audit, including professional and external auditors) resulting in resident and
family confidence in 'arms length' compliance review, complaints investigation, reduced
political interference to appease Shareholder expectations, and businesses focussing on
profit.565
The Government should hand over the entire process to an Independent and International
Quality Management Organisation or similar.566
563
Submission (ID#339723358).
564
Submission (ID#918059272).
565
Submission (ID#352779491).
566
Submission (ID#352779491).
172
There was support for the adoption of a single regulator, as recommended by the Productivity
Commission, as a means to introduce a unified culture in aged care quality regulation and to achieve
more efficient outcomes:
A system for responding to verified shortfalls in performance, via methods including:
education and assistance; notices of non-compliance; and sanctions" involving penalties
culminating in loss of accreditation. Backed up by reinspections against the standards, and
unannounced visits.567
Aged care staffing
There was a strong view that the lack of staff was a major contributor to the number of complaints
made around quality of care. It was noted that this situation negatively impacts staff morale:
There are inadequate staffing levels, they are overworked, and the communication chain is
not always maintained. Both these facilities have tried very hard over the years to meet our
requests.568
There was strong support for mandatory staff ratios in residential aged care facilities, to be audited
as part of accreditation, and for a requirement that a registered nurse be on duty at all times in
facilities:
Registered nurse coverage 24/7 is essential for the appropriate nursing care to be given and
monitored for residents who are increasingly debilitated and with multiple health issues.
Having a nurse on call for the facility is not adequate - residents have a right to expect timely
provision of things such as analgesia such as an S8 schedule medication which requires
registered staff to administer, and having to call a nurse in from home during the night is
unacceptable.569
Another suggestion was that personal care workers should be required to earn qualifications to
deliver services to residents. Staff should receive additional training, including specific training in
delivering care to people with dementia:
I think the required level of education personal care workers have is not enough, they are
under educated and underpaid. With an overly demanding, stressful job on minimum wage it
is somewhat understandable why care workers unwittingly participate in elder abuse day in,
day out.570
567
Submission ID#918059272).
568
Submission (ID#1045379818).
569
Submission (ID#371432381).
570
Submission (ID#673055120).
173
Appendix D: Complaints statistics
Aged Care Complaints Commissioner: summary of activity data
Contact type Jul 2016-Jun 2017 Apr-Jun 2016 Jan-Mar 2016
Complaints 4,713 1,113 1,041
All other contact 6,294 1,384 1,728
types*
Total 11,007 2,497 2,769
*Includes enquiries, own-initiative motions, reviewed processes and out of scope contacts.
All complaints by initiator type
Of the total number of complaints received by Complaints Commissioner for all care types in 2016-
17, 2,838 (60 per cent) came from a representative or family member, 873 (19 per cent) from a care
recipient, 574 (12 per cent) came from an anonymous complainant, 374 (8 per cent) from other
interested person/s and 54 (1 per cent) from another initiator.
Complaints by care type
In 2016-17 there were a total of 3,656 complaints made in respect of residential care which
accounted for 78 per cent of all complaints. The remaining 22 per cent were split between the home
care packages (688 or 15 per cent) and the Commonwealth Home Support Program (339 or 7 per
cent).
Most common residential complaints
Medication administration and management (559), falls prevention and post fall management (382)
and personal and oral hygiene (365) accounted for the most common issues in residential care
complaints in 2016-17.
Complaints finalised
The Complaints Commissioner reported a total of 4,617 finalised complaints in 2016-17 year, a 16
per cent increase over the previous period with 99 per cent finalised within 90 days.
Resolution processes
Wherever possible, the Commissioner's practice is to support the complainant to resolve their
concerns quickly and directly with the service provider (early resolution process). In 2016-17, early
resolution was achieved in 4,288 cases or 92 per cent, compared to 85 per cent of cases in the
previous 12 months.
Site visits
For the 2016-17 year, the Complaints Commissioner reported a total of 50 site visits compared with
49 visits made in the six months to 30 June 2016 (all service types). Of those, 43 were announced (35
in 2015-16) and seven were unannounced (14 in 2015-16).
174
Notice of intention to issue directions (notice)
The Complaints Commissioner's processes include giving notice to a provider that the Commissioner
is considering issuing the provider with a direction to undertake specific actions. This notice is given
by the Commissioner following consideration of the provider's initial response to the complainant's
concern.
The Complaints Commissioner reported that a total of 30 notices were sent during 2016-17
(compared to nine in the period January-June 2016) with five directions subsequently issued (nine in
the preceding period). The directions issued in 2016-17 related to the charging of a capital
refurbishment fee, infection control and security of tenure.
Referrals
Following an assessment of the issues raised by a complainant, the Complaints Commissioner may
refer that complaint or matter to another more appropriate organisation. A total of 511 referrals
were made in 2016-17:
• 468 to the Quality Agency
• 33 to the Department
• 10 to other organisations including one to APRHA.
Own-initiative processes
The Complaints Commissioner commenced 48 own-initiative processes in 2016-17 (29 in 2015-16)
relating predominantly to fees, charges and care recipient health or personal care.
Residential care anonymous complaints
The Complaints Commissioner advised the review that there was a total of 542 anonymous
complaints made in respect of residential care in the 2016-17 year.
175