18 September 2019

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Rory Haupt
Social Policy Section

The Royal Commission into Aged Care Quality and Safety (the Aged Care Royal Commission) was established on 8 October 2018, with the Honourable Richard Tracey AM RFD QC and Ms Lynelle Briggs AO appointed as Royal Commissioners. An additional commissioner, the Hon Gaetano (Tony) Pagone QC, was appointed on 13 September 2019. This quick guide outlines what a Royal Commission is, the background to the establishment of the Aged Care Royal Commission, its scope and aims, and how it has and will continue to operate until the handing down of the final report in November 2020.

About Royal Commissions

A federal Royal Commission is a government inquiry established by the Governor-General pursuant to the Royal Commissions Act 1902 (Cth). Section 1A of the Royal Commissions Act allows the Governor-General, by Letters Patent, to:

... issue such commissions, directed to such person or persons, as he or she thinks fit, requiring or authorising [those persons] to make inquiry into and report upon any matter specified in the Letters Patent, and which relates to or is connected with the peace, order and good government of the Commonwealth, or any public purpose or any power of the Commonwealth.

The Australian Law Reform Commission in its 2009 report into Royal Commissions , Making Inquiries, explained (at pages 53–58) that this type of ‘public executive inquiry’ is conducted on an ad hoc basis by an entity established by the executive arm of government to investigate issues and make recommendations to government. Public inquiries fall into two broad categories:

• issues of policy or law reform (policy inquiries) or
• investigation of facts or allocation of responsibility with respect to incidents or problems (investigatory inquiries).

The Royal Commission Act provides for Royal Commissions to take evidence under oath or affirmation, summon witnesses and/or produce documents, with penalties for failure to comply. Royal Commissions also have the powers to authorise search warrants, and jail penalties are applicable for offences such as the destruction of documents, the giving of false or misleading evidence, and contempt of court.

The Parliamentary Library maintains a list of Royal Commissions and Commissions of Inquiry appointed by the Australian Government from 1902.

Background to the Royal Commission

The establishment of the Aged Care Royal Commission followed a number of reviews of aged care, as well instances of poor care within the aged care system being reported in the media. There have been a number of inquiries into aged care in recent years, with Crikey noting at least six that occurred in 2017 alone (including inquiries into elder abuse and disability care).

Significant public attention on the issue of aged care quality arose from incidents at the Makk and McLeay nursing home at Oakden in South Australia (which was state-run but also received some Commonwealth Government aged care funding), which was closed in 2017 following reports of allegations that residents were being over-medicated, inadequately fed, injured, placed in mechanical restraints for up to 10 hours a day and isolated in squalid conditions. In response to concerns which had been raised earlier, the South Australian government Chief Psychiatrist, Dr Aaron Groves, conducted a review of the facility. His 2017 Review of Oakden Older Persons Mental Health Service found an absence of a satisfactory model of care, noting:

The Review finds that the Oakden facility is more like a mental institution from the middle of the last century than a modern Older Person’s Mental Health Facility. [p. 57]

The allegations arising from Oakden led to three staff being investigated by police, with eight others being stood down and 21 staff being reported to the Australian Health Practitioner Regulation Agency. Beyond this, in April 2017 the South Australian Government also released its response to the review undertaken by Dr Groves, accepting all six recommendations. South Australia’s Independent Commissioner Against Corruption also released a report in February 2018, outlining a set of 13 recommendations.

The Oakden incident led to the establishment of the Review of National Aged Care Quality Regulatory Processes, also referred to as the Carnell Paterson review. The role of the review was to assess the national regulatory framework in place, and to make recommendations to strengthen that framework to prevent further instances such as that of Oakden from occurring. The review made ten recommendations, including the establishment of the Aged Care Quality and Safety Commission; to require all residential aged care providers who receive Australian Government funding to participate in the National Quality Indicators Program; and to limit restrictive practices in residential aged care.

The Parliament also inquired into aged care quality, with both the House of Representatives and the Senate releasing reports which covered both Oakden, and broader issues with the quality of aged care. The House of Representatives Standing Committee on Health, Aged Care and Sport tabled its Report on the Inquiry into the Quality of Care in Residential Aged Care Facilities in Australia in October 2018. The report investigated issues relating to the delivery of care in facilities, and made 14 recommendations aimed at improving the operation of residential aged care facilities. The Senate Community Affairs References Committee also conducted an inquiry, releasing 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 report in April 2019, with the interim report released in February 2018. The Committee also made 14 recommendations.

The ABC’s Four Corners program’s two-part ‘Who Cares?’, which aired on 17 September 2018 (the day after Prime Minister Scott Morrison announced the Aged Care Royal Commission) and 24 September 2018, presented a view into the lives of those living in residential aged care facilities, highlighting instances of isolation and neglect.

About the Royal Commission

Announced on 16 September 2018, and established early in the following month, the Aged Care Royal Commission was due to submit an interim report by 31 October 2019, with the final report to be submitted by 30 April 2020, however, an extension of six months was granted by the Government in September 2019, with the final report now due on 12 November 2020. In a joint announcement with Health Minister Greg Hunt and Minister for Senior Australians and Aged Care Ken Wyatt, Prime Minister Scott Morrison explained the decision to establish a Royal Commission, pointing in particular to:

... a very disturbing trend in what is happening in terms of non-compliance, abuses, and failures of care that have been occurring across the sector.

As well as Royal Commissioners Richard Tracey, Tony Pagone and Lynelle Briggs, the Commission includes eight Counsel Assisting.

The Royal Commission is based in Adelaide, with hearings in Adelaide, Sydney, Broome, Perth, Darwin, Cairns, Mildura, Brisbane, Mudgee, Hobart and Melbourne; each focusing on a different aspect of aged care. Hearings and topics announced to date are summarised below:

Table 1: Aged Care Royal Commission Hearings and Topics

Transcripts of hearings are available on the Royal Commission website.

The Royal Commission has also sought submissions from both aged care providers and the public. In late November 2018 all approved aged care providers were asked to provide information on all instances of abuse, mistreatment, or substandard care in their service since July 2013 (p. 4). Public submissions have also been invited, with a portal established on the Royal Commission’s website. In an August 2019 newsletter the Royal Commission noted that 5,258 submissions had been received to date.

Funding for the Royal Commission was announced in the 2018–19 Mid-Year Economic and Fiscal Outlook (p. 11). The Royal Commission will receive $104.3 million over four years, starting in 2018–19, administered by the Attorney-General’s Department. A further $17.2 million was allocated over two years to the Department of Health, the former Australian Aged Care Quality Agency, and its replacement, the Australian Aged Care Quality and Safety Commission, to support activities associated with the Royal Commission.

Scope of the Royal Commission

The Letters Patent, signed on 6 December 2018, outline the directive and scope of the investigation of the Royal Commission. The terms of reference can be summarised as:

• the quality of aged care services, the prevalence of substandard care including abuse, the causes of any systemic failures in aged care and actions that should be taken in response
• the delivery of services to those with disabilities (including younger residents) and dementia
• the challenges that will arise in the future, given demographic change
• how the Government can improve the system
• how to create an aged care system which is consumer-oriented, allowing for choice and control for residents and users and
• how services can be delivered sustainably, with the use of technology and investing in the workforce.

As noted in the Letters Patent, the scope of the Royal Commission includes all types of Commonwealth Government-funded aged care services, all aspects of quality and safety of aged care services, the aged care workforce, the diversity of users, the intersection between aged care services and other services accessed by users, examples of good practice, and previous aged care reports and inquiries.

The Royal Commission is operating not only to investigate the system, but also to make recommendations for change and reform. As Commissioner Briggs notes in the preliminary hearing:

The Letters Patent direct us to make recommendations about any policy, legislative, administrative or structural reforms that we consider necessary. A policy and research program has been developed to assist us to make recommendations that would provide a sustainable aged care system of high quality that is safe and meets the expectations of the Australian community. [p. 5]

The Royal Commission has published seven background papers into areas relevant to the Commission’s work, including the legislative framework of aged care quality and safety regulation, the use of restrictive practices in residential care, and pressures on the aged care system in the medium-term and long-term.

Media coverage of the Royal Commission into Aged Care Quality and Safety is being compiled by the Parliamentary Library as the Commission progresses.

For copyright reasons some linked items are only available to members of Parliament.

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