Royal commission lawyers call for independent aged care regulator as part of system overhaul

By Shannon Jenkins

October 23, 2020

Warnings that in 10 years aged-care workers will be short by at least 110,000.
Warnings that in 10 years aged-care workers will be short by at least 110,000. (InsideCreativeHouse/Adobe)

New legislation based on human rights and mandated staffing ratios are among the changes needed to drastically overhaul Australia’s aged care system, the Royal Commission into Aged Care Quality and Safety has heard.

Senior counsels Peter Gray and Peter Rozen on Thursday submitted 124 recommendations to the royal commission. In a 475-page document, they noted one of the “more significant” recommendations was the establishment of an independent Australian Aged Care Commission that would be responsible for administering and regulating the aged care system.

Commissioners Lynelle Briggs and Tony Pagone had conflicting opinions on that particular proposal. While Pagone appeared to support the creation of an independent authority, Briggs questioned whether it would improve care for older Australians, and “how any such benefits would outweigh the very substantial costs and disruption involved in such a radical transformation of the government’s administrative machinery”.

She said she has noticed “a growing determination among officials and in the government to fix the problems of the aged care system and to pursue a genuine reform agenda”, and suggested the Department of Health be overhauled instead.

“The department would be staffed appropriately and resourced appropriately so that it has enough qualified staff and money to do its job,” she said.

Pagone noted that Briggs’ comments were “not intended to be a final decision by us”.

Other key recommendations outlined by counsel assisting included a new:

  • Aged Care Act based on human rights principles for older people,
  • Planning regime for aged care which provides demand-driven access rather than the current rationed approach,
  • Independent process for setting aged care quality standards,
  • Enforceable general duty of care on approved providers.

Mandated staffing ratios in residential aged care, compulsory registration of personal care workers, and an independent Australian Aged Care Pricing Authority that will determine aged care prices appropriate to the provision of high quality and safe aged care services were also highlighted as significant recommendations.

Read more: ‘Now is not the time for blame’: aged care royal commission makes recommendations to government

Rozen told the commission at least one in five people receiving residential aged care have received “substandard” care.

“The weight of the evidence before the commission supports a finding that high quality aged care is not being delivered on a systemic level in our system and the level of substandard care is unacceptable by any measure,” he said.

In their submission, counsel assisting outlined a plan for a new aged care system that “represents a fundamental and generational change in direction from the approach embodied in the existing legislation”.

“As a matter of principle, the system is about supporting people to live well into old age, whether at home or elsewhere. It follows that the people receiving aged care services must be at the heart of the new aged care system,” the document said.

“Older people in need of care and support should have a universal right to high quality care. Care that is of high quality, safe, empowering and timely and which assists older people to live an active, dignified, self-determined and meaningful life.”

The commission heard that an estimated 50 incidents of unlawful sexual contact occur in aged care facilities every week, which Rozen described as a “national shame”.

Earlier this year the Community and Public Sector Union submitted four recommendations to the royal commission calling for changes to staffing and resources, increased regulatory powers for the Aged Care Quality and Safety Commission, a revised operational structure, and cultural diversity.

CPSU deputy secretary Beth Vincent-Pietsch on Thursday said counsel assisting’s proposed recommendations have supported the CPSU’s stance. She noted ACQSC staff have been “hamstrung” by a lack of resourcing and insufficient powers.

“Our members desperately want to deliver on community expectations, but they need the government to act. Understaffing, under resourcing and poor training structures, coupled with ACQSC’s incredible over-reliance on labour hire, is having a devastating impact on ACQSC’s capacity,” she said.

“An incapacitated regulator leaves vulnerable people in the aged care sector at risk. That’s why our members are pleased to see counsel assisting the royal commission back every recommendation CPSU members made. We look forward to the final report of the commission and hope it will lead to government action.”

Earlier this month the royal commission released a special report containing five recommendations to government, including the establishment of a national aged care advisory body. The body would consider the needs and rights of aged care residents and their loved ones, and their advice would allow the government to “play the vital leadership role it must play as the government with responsibility for the sector”.

The royal commission’s final report will be delivered in February 2021.

Read more: Royal commission hears of ‘notorious problems’ with relationship between state health and federal aged care sectors


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