By Luke Geary, Partner, Naomi Brodie, Associate & Georgia Haydon, Graduate
In light of extensive media and parliamentary scrutiny, on 16 September 2018 the Federal Government announced that it would establish a Royal Commission into the aged care sector (the Commission).
Over recent years, there have been increasing reports of violence, abuse and neglect of those within the aged care system, and the Commission’s inquiry will build on significant work that is being undertaken with respect to these issues.
Various past inquiries and sector leaders have identified that older Australians are particularly vulnerable to physical, psychological, financial and sexual abuse; though these are not the only issues facing the sector, with ever-changing and diverse demographics presenting new issues, such as language and access barriers to aged care services. A major challenge for the future revolves around the sustainable delivery of aged care services in rural and remote areas, where providers incur higher costs with lower financial returns.
In response to these issues, the Commission will conduct public hearings in all capital cities as well as regional centres, and is due to produce an interim report by 31 October 2019 and a final report by 30 April 2020.
Thus far, the Commission has released practice guidelines, met with consumer groups and government stakeholders, commissioned research papers, and issued notices to providers requiring the production of documents. From the requests to providers, the most common complaints relate to elder abuse, medication mismanagement, over-use of psychotropic medications, food safety, poor response time to residents requiring assistance, inadequate wound management and record keeping.
The Commission opened with a preliminary hearing on 18 January 2019, which provided insight into topics that will be covered by the inquiry, the Commission’s powers, the mode of the inquiry and its likely impact on organisations operating in the aged care industry. The first public hearings (the First Hearings) were held between 11 February 2019 and 22 February 2019. The purpose of this round of hearings was to ventilate issues of key concern to organisations that have a deep interest or involvement in the aged care system, and to identify aspects of the system that will receive the attention of the Royal Commission over the next eight months.
Terms of Reference
The Terms of Reference identify a broad range of issues that will be examined by the Commission, including:
- quality of aged care services, the causes of any systemic failures and any actions to be taken in response;
- the provision of care to persons living with disabilities in residential aged care;
- supporting the increasing number of Australians suffering dementia seeking access to the aged care system;
- the interface between health, aged care and disability;
- the future challenges and opportunities in delivering accessible and affordable aged care services in Australia, including in remote, rural and regional areas;
- what can be done within the Australian community to strengthen the aged care system;
- person-centred care – dignity, mental health, nutrition, choice, family involvement, medication management and end-of-life care;
- delivering aged care services in a sustainable way; and
- any other matters incidental to the above that the Commission ‘considers relevant’ to the inquiry.
Key issues arising out of the First Hearings
The Commission heard evidence from consumer advocacy bodies, health care provider peak bodies, national aged care provider peak bodies, regulators, as well as care recipients and their families.
A particular focus of the evidence was in relation to the meaning of “quality” and “safety” within the aged care sector, and whether the current system meets consumer needs and community expectations. In considering those issues, the Commission heard evidence, broadly, in respect of the following:
- Funding: The common thread in the evidence was that more funding is needed to respond to the needs of those within the growing pool of people requiring access to aged care services. Two-thirds of government expenditure is directed towards the funding of residential aged care, despite the fact that two-thirds of people accessing aged care services use home care and support services.
- Complex care needs: There has been an increase in people with complex care needs (6 in 7 people in permanent residential aged care have at least one diagnosed mental health condition), with dementia being more prevalent and likely to become the leading cause of death for Australians in the 2020s. The Commission heard that 50% of residents in aged care facilities have dementia.
- Staffing issues and barriers to retention of staff: There has been a decrease in the amount of registered nurses within residential aged care facilities, and an increase in the ‘unregulated workforce’ (i.e., carers/assistants-in-nursing), which is not governed by a regulatory board. In relation to the unregistered workforce, concerns have been raised about a prospective employer’s ability to screen potential employees for past misconduct. Barriers to the retention of professionally trained staff within the aged care sector have been identified broadly as: lack of training and support, specifically in relation to properly attending to patients with complex care needs; increased workloads and the subsequent rise of ‘casual neglect’ of patients due to time pressures; and lower remuneration when compared to other health industries. Evidence confirmed the need for discussion around the implementation of minimum staffing levels.
- Medication: The inappropriate use of psychotropic medications to treat people with dementia (which increases a patient’s risk of death, disability, falls and pneumonia) was canvassed. Patient care needs to be individualised to ensure that consent is being secured and the correct dosage is being provided. There is a need for better regulation and an appropriately trained workforce to combat this issue.
- Data collection and integrated care models: Miscommunication between hospitals, general practitioners (GPs) and residential care staff is prevalent and exacerbated by the fact that there is no core database for the sharing of patient medical information. The success of My Health Record will depend on how many people volunteer to participate, as well as the implementation of IT infrastructure and staff training within residential aged care facilities for the maintenance of such information.
- Access to aged care: Consumers currently face difficulties in accessing information in relation to aged care services, and are subjected to waiting periods of between 12 to 18 months before being able to access home care packages, during which time their assessed needs may have changed and their assigned aged care package may no longer be relevant to them.
- Access to healthcare in residential aged care facilities: These facilities are not standalone health services. There is often no funding for residents to receive access to dental care, mental health services, medical services and end of life care. Issues were raised about the lack of attendance by GPs at these facilities. Essentially, the system depends on the goodwill of GPs to perform a range of unremunerated administrative jobs for patients, in circumstances where, when an attendance by a GP is made, there are usually poor record keeping practices, no nurses, no consultation rooms, no handover or communication with the relevant facility.
- Complaints mechanisms: The Aged Care Quality and Safety Commission has been established and is developing a transparent complaints and inquiry system aimed at reducing the ‘fear of reprisal’ for complainants.
- Consumers shaping the future of aged care: The Government is implementing a mandatory National Aged Care Quality Indicator Program which will provide key information to consumers about a care facility’s ‘quality performance’. Providers will also be required to publish pricing information.
- Alternative care models: The Commission heard evidence of the success of “home share models” being piloted in Belgium (i.e., matching students and older people in exchange for accommodation / services).
The Commission heard that Australia faces the challenge of fostering respect for the elderly as a nation; evidence was heard that there needs to be a halt on the judgment of people and their limitations and a shift towards the celebration of the achievements of older Australians.
In his opening address, Senior Counsel Assisting the Commission, Mr Peter Gray QC, also made observations about the status of responses to the Commission’s requests to providers for information and the course forward for those who have not responded to those requests. Mr Gray QC stated that the Commission will be following up with providers who have not yet responded to those requests to ensure that its requests for information have been received and will be given proper attention. If no response is received to that follow-up, the provider will be “subject to careful scrutiny”. Responses were due on 8 February 2019.
Further hearings are being scheduled throughout 2019 and the Commission will provide additional information about the matters to be addressed during these hearings on its website as the arrangements are finalised. In his closing remarks on Friday, 22 February 2019, Dr Timothy McEvoy, Senior Counsel Assisting the Commission, indicated that the next round of hearings will begin in Adelaide on 18 March 2019, which will focus on home care and the community. The next block of hearings will begin in Sydney on 6 May 2019, and will focus on residential aged care, including quality and safety, and dementia.
If your organisation is operating in the aged care sector, you should consider implementing the following actions in light of the broad terms of reference and upcoming hearing schedule to ensure your organisation is best placed to respond to any requests from the Commission, including for information or to participate in future hearings (whether or not you have been contacted by the Commission to date):
- Consider seeking legal advice to assist your organisation understand and address the areas of risk and exposure your organisation may face during the course of the Royal Commission;
- Ensure that you have sufficient resources to respond to requests for information, including the ability to identify and assess large amounts of relevant documents and information;
- Consider establishing a ‘response team’ within your organisation, tasked with coordinating responses as may be required;
- Evaluate your organisation’s insurance position; and
- Ensure that any responses your organisation provides to the Commission are forthcoming and transparent. The Commission has noted that organisations who fail to respond or adequately respond to the Commission’s requests for information will ‘draw attention to themselves and their systems’ and that it will be gravely concerned if providers or government departments instruct employees to withhold information.