Bills Digest No. 40,
2018–19
PDF version [804KB]
Dr Shannon Clark
Social Policy Section
Claire Petrie
Law and Bills Digest Section
8 November 2018
Contents
The Bills Digest at a glance
Purpose of
the Bills
Structure of
the Bills
Background
Committee
consideration
Policy
position of non-government parties/independents
Position of
major interest groups
Financial
implications
Statement of
Compatibility with Human Rights
Key issues
and provisions
Other
provisions
Concluding
comments
Date introduced: 12
September 2018
House: House of Representatives
Portfolio: Health
Commencement: The Aged
Care Quality and Safety Commission Act commences on 1 January 2019. The
Consequential Amendments Act commences on various dates, as set out in the
digest.
Links: The links to the Bills,
their Explanatory Memoranda and second reading speeches can be found on the
home page for the Aged
Care Quality and Safety Commission Bill 2018 and Aged
Care Quality and Safety Commission (Consequential Amendments and Transitional
Provisions) Bill 2018, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the Federal
Register of Legislation website.
All hyperlinks in this Bills Digest are correct as at
November 2018.
The Bills Digest
at a glance
Purpose
- The
Aged Care Quality and Safety Commission Bill 2018 establishes the Aged Care
Quality and Safety Commission (the Commission) as an independent statutory body
with a range of regulatory functions.
- The
Aged Care Quality and Safety Commission (Consequential Amendments and
Transitional Provisions) Bill 2018 makes consequential amendments that are
required to transfer functions of the Aged Care Quality Agency and the Aged
Care Complaints Commission to the new Commission from 1 January 2019.
- The
Bills also signal the Parliament’s intention for future legislation to transfer
the regulatory functions of the Department of Health from 1 January 2020.
- The
establishment of the Commission is in response to the first recommendation of
the Review of national aged care quality regulatory processes.
Commission’s functions and powers
- The
Commission will be headed by the Commissioner whose functions will include:
- protecting
and enhancing the safety, health, well-being and quality of life of aged care
consumers
- promoting
the provision of quality aged care and services
- consumer
engagement functions
- complaints
functions
- regulatory
functions
- education
functions
- other
functions as are conferred on the Commissioner by other Acts and legislative
instruments
- to
seek and consider clinical advice and
- to
provide advice to the Minister on request.
- The
Principal Bill also sets out the Commission’s responsibilities and powers in
support of those functions, including information sharing and entry and search
powers of authorised complaints officers and regulatory officials.
Rules
- The
Bill confers on the Minister extensive powers to make Rules by legislative
instrument, including for matters such as:
- complaints
handling processes
- the
accreditation of aged care services
- the
regulation and monitoring of quality of care and services
- the
functions or powers of quality assessors and
- review
decisions.
Committee and stakeholder views
- The
Bills have been considered by Senate Community Affairs Legislation Committee,
which recommended that the Bills be passed.
- Stakeholders
are generally supportive of the establishment of the Commission but have
recommended amendments to strengthen various aspects of the Bills.
Purpose of
the Bills
The purpose of the Aged Care Quality and Safety Commission
Bill 2018 (the Principal Bill) is to establish the Aged Care Quality and Safety
Commission (the Commission) as a new independent statutory body with a range of
regulatory functions. The Commission will replace the existing Aged Care
Complaints Commissioner and Australian Aged Care Quality Agency.
The Aged Care Quality and Safety Commission (Consequential
Amendments and Transitional Provisions) Bill 2018 (the Consequential Bill) deals
with matters necessary to enact the Principal Bill and to enable transition to
the new body. It repeals existing legislation and sets out transitional and
application provisions to enable continuity of operations during the transition
process.
Structure
of the Bills
The Principal Bill is divided into nine parts. Parts 1–4
establish the Commission and set out the functions and powers of the
Commissioner. Part 5 establishes the Aged Care Quality and Safety
Advisory Council and its functions. Parts 6–8 set out operational
matters, such as the Commission’s requirements for reporting and planning,
information sharing, and its entry and search powers. Part 9 outlines
delegations and the making of rules.
The Consequential Bill has two Schedules:
- Schedule
1 repeals and amends relevant legislation and
- Schedule
2 sets out transitional arrangements.
Background
Australian
Government funded aged care services
Aged care refers to a range of services supporting older
people to undertake their day-to-day activities.[1]
The Australian Government is the primary funder and regulator of aged care in
Australia.[2]
Services are delivered by many different not-for-profit, for-profit and
government providers.[3]
Types of aged care
The aged care system comprises a continuum of care from home
support, to home care and residential care.
In order of increasing levels of support:
- the Commonwealth Home Support Programme (CHSP) provides
entry-level support services to enable older people to remain independent at
home[4]
- Home care provides a more comprehensive service, including
personal care, support, clinical and other services to meet the clients’ needs
via four levels of packages of home-based care, ranging from
basic care needs (level 1) up to high care needs (level 4) and[5]
- Residential care provides accommodation and care services in
residential aged care facilities for older people who need higher levels of
care than can be provided at home[6]
In some circumstances, meeting the care needs of older
people will require an alternative approach than the care provided through
mainstream residential or home care services. Flexible care programs
address such circumstances. There are five flexible aged care programs:
- Transition
Care
- Short-Term
Restorative Care (STRC)
- Multi-Purpose Services (MPS)
- Innovative Care
- National Aboriginal and Torres Strait Islander Flexible Aged Care
Program (NATSIFACP).[7]
Types of aged care under the Aged Care Act 1997
are residential care, home care and flexible care. Programs administered
outside the Act are the CHSP and the NATSIFACP, which are governed by their
respective program manuals.[8]
Aged care
quality regulation
Responsibility for aged care quality regulation is
currently split between three entities—the Department of Health (DoH), the
Australian Aged Care Quality Agency (the Quality Agency) and the Aged Care
Complaints Commissioner (the Complaints Commissioner).[9]
The entities have memoranda of understanding outlining how they share
information with each other in order to carry out their duties and are governed
by a range of Acts, legislative instruments, guidelines and other policies.[10]
Department of Health
DoH is responsible for policy and compliance
with the Aged Care Act. DoH approves providers to provide care under the
Act, and contracts providers of CHSP and NATSIFACP services to provide
care outside of the Act. Providers must meet a range of responsibilities specified
in the Aged Care Act or in the relevant contract relating to the quality of care, the rights of care recipients and
governance. This includes the responsibility to meet quality standards.[11]
DoH is responsible for taking regulatory action when
providers fail to comply with their responsibilities, including when they fail
to implement improvements required by the Quality Agency or by DoH.[12]
Regulatory actions include imposing sanctions and issuing notices of
non-compliance.[13]
Australian Aged Care Quality Agency
The Quality Agency is an independent
statutory agency established under the Australian Aged
Care Quality Agency Act 2013 (Quality Agency Act).[14] The Quality Agency assesses
services against the relevant standards through:
- accreditation of residential care services and residential STRC
services
- quality reviews of home care services, CHSP services, home STRC
services and NATSIFACP services and
- ongoing
monitoring of performance.[15]
If the Quality Agency finds that a service has not met one
or more outcomes under the relevant standards, it will require the service to
rectify the non-compliance, and will also notify DoH. If the Quality Agency identifies
non-compliance that poses a serious risk to care recipients, it notifies DoH of
the serious risk. The Quality Agency can also decide to vary or revoke the
accreditation of a residential care service.[16]
Reforms to the aged care quality standards are contained
in the Aged
Care (Single Quality Framework) Reform Act 2018 which will replace four
sets of aged care quality standards with a single set of standards commencing
on 1 July 2019.[17]
Aged Care Complaints Commissioner
The Aged Care Complaints Commissioner (the Complaints
Commissioner) is a statutory office holder under the Aged Care Act. The
functions of the Complaints Commissioner include:
- resolving
complaints about aged care services
- developing
resources and educating people and aged care providers about best practice in
complaints handling and
- providing
information to the Minister, by request, in relation to the Complaints
Commissioner’s functions.[18]
The Complaints Commissioner is supported by around 150
complaints officers.[19]
The Complaints Commissioner handles complaints about aged care services subsidised
by the Australian Government, and can issue directions if he, or she, is not
satisfied that a service provider is meeting its responsibilities.[20]
A direction requires that a service provider demonstrate how it is meeting, or
will meet, its responsibilities under the Act or their funding agreement.[21]
The Commissioner can also refer complaints to other organisations. The
Complaints Commissioner works closely with the Quality Agency and DoH, as well
as the Australian Health Practitioner Regulation Agency, and in each state and
territory, the coroner, police, and state and territory health commissions.[22]
Concerns about aged care quality
Concerns about the quality of aged care services,
particularly residential aged care services, have led to a number of recent
inquiries and reviews. In 2017, failures of care in the Oakden Older Persons
Mental Health Service (Oakden) in Adelaide received high profile public
attention following a report by Chief Psychiatrist of South Australia, Dr Aaron
Groves.[23]
Dr Groves found the facility to be unsuitable for its purpose and identified numerous
areas of failings in the care and treatment of residents. The residential aged
care wards of the facility were shut down in June 2017.[24]
Carnell Paterson review
The failures of care identified at Oakden prompted further
inquiries and reviews. In May 2017, the Australian Government announced it was
commissioning an independent review of the aged care quality regulatory
processes to be undertaken by Kate Carnell and Professor Ron Paterson.[25]
The purpose of the review was to determine why regulatory
processes did not identify failures of care at Oakden. While Oakden had
sanctions imposed on it, and briefly lost accreditation in 2008, by the end of
the year, sanctions were lifted and accreditation reinstated.[26]
Accreditation then proceeded routinely for the next several years until a
complaint by a family in 2016 prompted a series of events leading to the
investigation by Dr Groves.[27]
The Review of national aged care quality regulatory processes
(the Carnell Paterson review) reported on 25 October 2017. It found that the
regulatory system was fragmented and that ‘current regulatory mechanisms do not
consistently provide the assurance of quality that the community needs and expects’.[28]
The Carnell Paterson review made ten recommendations:
- establish
an independent Aged Care Quality and Safety Commission to centralise
accreditation, compliance and complaints handling[29]
- the
Aged Care Commission will develop and manage a centralised database for
real-time information sharing[30]
- all
residential aged care services in receipt of Commonwealth funding must
participate in the National Quality Indicators Program[31]
- the
Aged Care Commission will implement a star-rated system for public reporting of
provider performance[32]
- the
Aged Care Commission will support consumers and their representatives to
exercise their rights[33]
- enact
a serious incident response scheme (SIRS) for aged care[34]
- aged
care standards will limit the use of restrictive practices in residential aged
care[35]
- ongoing
accreditation, with unannounced visits, to assure safety and quality of
residential aged care[36]
- ensure
that assessment against Standards is consistent, objective and reflective of
current expectations of care[37]
and
- enhance
complaints handling.[38]
On the release of the Carnell Paterson review, the
Minister for Aged Care, Ken Wyatt, announced that the Government would move to
implement unannounced accreditation audits as soon as possible.[39]
In April 2018, Mr Wyatt announced the establishment of the
Aged Care Quality and Safety Commission.[40]
The appointment of Janet Anderson as the first aged care quality and safety
Commissioner was announced in October 2018.[41]
Senate Standing Committee on
Community Affairs inquiry
In June 2017, the Senate Standing Committee on Community
Affairs (first Community Affairs Committee) commenced an 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’.[42]
The inquiry was established to focus in the first instance on the critical
failures at Oaken; however, in its interim report released in February 2018,
the first Community Affairs Committee also highlighted its concerns with
systemic issues impacting the quality of aged care services.
In the interim report, the Committee made two
recommendations—that the inquiry be extended[43]
and that dementia-related and other mental health services delivered in aged
care contexts be classified as health services rather than aged care services,
and therefore regulated by healthcare quality standards and accreditation
processes.[44]
In its response to the interim report, the Government
rejected the reclassification of
dementia-related and mental health services as health services, instead
supporting good clinical governance within aged care services. The introduction
of the Single Aged Care Quality Framework and the establishment of the new
Commission were among the initiatives cited as strengthening oversight
arrangements.[45]
The Committee’s final report was due on 28 November 2018; however, the
Committee has called for further submissions by 30 November 2018 and will seek
a further extension for reporting until February 2019.[46]
House of Representatives Standing
Committee on Health, Aged Care and Sport inquiry
In December 2017, the House of Representatives Standing
Committee on Health, Aged Care and Sport (the House Committee) commenced an
inquiry into the ‘Quality of care in residential aged care facilities in
Australia’.[47]
The House Committee’s report was tabled in October 2018. It made fourteen
recommendations, including but not limited to, the development of national guidelines
for the Community Visitors Scheme,[48]
review of the Aged Care Funding Instrument[49]
and Medicare Benefits Schedule,[50]
and greater limitations placed on the use of restrictive practices in aged care
facilities.[51]
The House Committee’s report also recommended that an independent review and Parliamentary
inquiry be undertaken into the proposed Aged Care Quality and Safety Commission
after two years ‘to determine its effectiveness in ensuring high standards of
care, best clinical practice and reducing mistreatment’.[52]
Four Corners broadcasts
Public focus again turned to concerns about the quality of
aged care following the airing of a
two-part investigation by the Australian Broadcasting Corporation’s (ABC) Four
Corners into the treatment of older people in residential care facilities.
The special investigation was the ABC’s biggest crowd sourced investigation,
with more than 4,000 people sharing their experiences of the aged care
industry.[53]
The episodes, which aired on Monday 17 September 2018 and Monday 24 September 2018
revealed cases of neglect, abuse and poor practice.
Announcement of Royal Commission
On 16 September 2018, the day before the first
part of the Four Corners investigation aired, the Government announced
its decision to ask the Governor-General to establish a Royal Commission into
the aged care sector.[54]
Consultation on the Terms of Reference closed on 25 September 2018 with
more than 5,000 submissions received from aged care consumers, staff, health
professions, providers, community groups and other stakeholders.[55]
On 9 October 2018, Prime Minister Scott Morrison announced the Terms
of Reference for the Royal Commission into Aged Care Quality and Safety.[56]
The Royal Commission’s interim report is due by 31 October 2019 and
the final report due no later than 30 April 2020.
Committee
consideration
Senate Community Affairs
Legislation Committee
The Bills were referred to the Senate Community Affairs
Legislation Committee (the second Community Affairs Committee) for inquiry and
report by 12 October 2018. An extension for reporting was initially granted
until 15 October 2018 and then until 19 October 2018.[57]
The Committee received 33 submissions and held a public hearing in Canberra on
10 October 2018.
The second Community Affairs Committee tabled its report
on 19 October 2018. The report recommended that the Bills be passed,
strongly agreeing with the consensus of witnesses and submitters that the
Commission (as established by the Principal Bill) is ‘a positive step forward
in protecting the rights of older Australians receiving aged care services’.[58]
The Committee viewed the recommendations proposed by witnesses and submitters
as representing stakeholders’ shared desire for continued improvement in the
aged care sector and oversight of care delivery, and endorsement of the
Commission as the appropriate entity to improve services and regulation. The
report suggested that some recommendations would require further legislative
consideration; others could be incorporated into the Commission’s work once
established.[59]
The Australian Greens (the Greens) provided extensive
additional comments, broadly supporting the Bills but stating that some
amendments were required.[60]
The Minister’s second reading speech in support of the
Principal Bill refers to the Commissioner's specific function relating to:
... seeking and receiving clinical advice in relation to the
functions of the Commissioner, which is envisaged to occur through the
engagement of a Chief Clinical Advisor, with an Expert Clinical Panel to be
established to support the role of the Chief Clinical Advisor.[61]
The Greens expressed concern that the Principal Bill makes
no reference to any such role and consider that the Chief Clinical Advisor should
be explicitly included. They want to see the Chief Clinical Advisor given
responsibility for monitoring and oversight of restraints—chemical and
physical—and medication management.[62]
In addition, the Greens disputed the description of the
Commission as ‘a single point of contact’ for concerns about aged care, given
the Commission will not be able to receive complaints about My Aged Care or
assessment processes, and stated that the Commission’s complaint functions
should be broadened so that processes of assessment and determination of
eligibility are not separated out from service delivery.[63]
Other suggested amendments were the inclusion of references in the Bill to:
- the
rights of older Australians
- ‘representatives
of aged care consumer’ to align with the definition in the Quality of Care
Amendment (Single Quality Framework) Principles 2018
- representatives
in the Commissioner’s consumer engagement functions
- the
workforce in the Commission’s education functions
- Commonwealth-funded
aged care services in clause 59 and
- provisions
around consent and review.
The Greens also articulated expectations for the future Bills
to include reference to sanctions and quality improvement as well as asking
whether a serious incident reporting scheme—a recommendation from the Carnell
Paterson review—would sit within the Aged Care Act or the next Bill.
The Greens recommended the Principal Bill be amended to
address the issues outlined.[64]
Senate Standing Committee for the
Scrutiny of Bills
The Scrutiny of Bills Committee commented on the Bills in
its Scrutiny Digest of 19 September 2018.[65]
The Committee noted that a number of aspects of the Commissioner’s regulatory
functions are to be set out in rules and expressed the view that significant
matters, such as complaints and regulatory functions, and review rights, should
be included in the primary legislation.
The Scrutiny of Bills Committee also drew attention to,
and sought the Minister’s advice on, the broad discretionary powers the
Principal Bill gives to the Commissioner to disclose protected information (paragraph
61(1)(a)), the proposal to use offence-specific defences, which reverse the
evidential burden of proof (subclauses 60(3), (4) and 74(6)),
as well as the broad delegation of administrative powers to a large range of
staff members, without specifying their qualifications or attributes.
Minister’s response
The Minister’s response was considered by the Committee in
its Scrutiny Digest of 17 October 2018.[66]
In response to the Committee’s concerns that significant
matters relating to the Commission’s complaints and regulatory functions,
including review rights, were in delegated legislation, the Minister advised
that ‘[a]ll significant matters relating to the rights and responsibilities of
persons involved in the complaints and regulatory functions will be established
in primary legislation’ while operational matters will be prescribed in rules.[67]
The Minister also noted that the Bills ‘elevate certain matters of significance
currently in delegated legislation into the primary legislation’.[68]
In relation to the Committee’s concerns relating to the
Commissioner’s broad discretionary powers (paragraph 61(1)(a)), the
Minister advised:
Clause 61(1)(a) of the Bill is intended to be based on
provisions contained in Division 86 Aged Care Act 1997 and Part 7 of the
Australian Aged Care Quality Agency Act 2013. These provisions enable
disclosures of protected information on similar terms to support the
complementary functions of the CEO of the Quality Agency and the Secretary of
the Department under the Aged Care Act 1997. Clause 61(1)(a) is
therefore included in the Bill to maintain consistency with the Aged Care
Act 1997.[69]
Regarding the offence-specific defences that reverse the
evidential burden of proof in subclauses 60(3), (4) and 74(6),
the Minister advised that under these subclauses, the defendant bears the
evidential burden because they are matters peculiarly within the knowledge of
the defendant.[70]
This is consistent with Government policy, A
guide to framing Commonwealth offences, infringement notices and enforcement
powers.[71]
On the Committee’s concerns about the broad delegation of
administrative powers, the Minister responded that the provision was consistent
with the powers of the current Aged Care Complaints Commissioner, and that the
flexibility was retained to ensure the Commissioner’s operational efficiency.[72]
The Minister viewed the Bill’s provisions as appropriate and suggested that
further refinements could be considered as part of the second stage of reforms.[73]
Committee response to the Minister
The Committee noted the Minister’s advice about the
Commissioner’s complaints and regulatory functions being prescribed by the
rules but reiterated its view that specific consultation obligations be
included in the Bill.[74]
The Committee also remained concerned that paragraph
61(1)(a) conferred extremely broad discretion on the Commissioner to
disclose personal information and reiterated that the Bill does not require the
Commissioner to notify a person about a proposed disclosure of their
information.[75]
The Committee did not find it apparent that the each of
the matters in subclauses 60(3) and (4) would be peculiarly
within the knowledge of the defendant, and disagreed with the Minister’s
description of the maximum penalty of two years’ imprisonment as a ‘low
penalty’.[76]
In line with its initial comments, the Committee noted
that it may be appropriate to amend clause 76 of the Principal Bill
and item 19 of Schedule 1 of the Consequential Bill to require
the Commissioner be satisfied that persons on whom functions or powers are
delegated or sub-delegated have appropriate expertise.[77]
It reiterated:
... it has not generally considered administrative or
operational flexibility, or consistency with existing legislation, to be
sufficient justification for allowing a broad delegation of administrative
powers to officials at any level.[78]
The Committee requested that key information provided by
the Minister be included in the Explanatory Memorandum.[79]
It also drew to the attention of senators its scrutiny concerns, as discussed
above.[80]
Policy
position of non-government parties/independents
The Greens and the Australian Labor Party (Labor) have expressed
broad support for the establishment of the Commission, as well as calling for
further reform and strengthening of the powers of the Commission. For instance,
in response to the announcement of the establishment of the Commission in April
2018, Australian Greens Senator, Rachel Siewert, stated:
The reforms announced today are a step in the right
direction, particularly plans to establish a national independent Aged Care
Quality and Safety Commission.
I will note though that the Government has not responded to
all the recommendations in the various recent reviews, they must commit to
further reform so that aged care facilities are as safe as can be for older
Australians.
I welcome that there will be a public rating against quality
standards, which will increase transparency, but more work needs to be done to
ensure that the standards meet community expectations of the best possible
care.[81]
Julie Collins stated that Labor supports ‘what the
[Principal] Bill is trying to do’ but called for the powers of the Commissioner
to be strengthened:
We also think that these Bills
are a missed opportunity for the government to give the Commission stronger arbitrary
powers, given the level of public concern in relation to some of the disputes
people have with service providers. We don't want to see this become a
toothless tiger. We think it is a shortfall that government didn't consider
giving the new commissioner greater arbitrary powers to resolve disputes
between consumers and providers in the aged-care system.[82]
Position of
major interest groups
The Bills have generally been welcomed by the majority of stakeholder
groups. In response to the original announcement of the Commission (as
established by the Principal Bill) in April, major interest groups have given
it their support.[83]
For example, COTA Australia welcomed measures to strengthen protections for
older people receiving aged care:
“Jointly the new Standards and the Quality and Safety
Commission represent a landmark advance for consumer rights in aged care. We
still need more to be done but these are essential steps forward to driving out
poor quality providers of support and care for older Australians,” Mr Yates [COTA
Australia Chief Executive] said.[84]
The national peak body for providers of age services,
Leading Age Services Australia (LASA), also welcomed the announcement, stating
that ‘quality in Australia’s aged care system is
non-negotiable’[85]
LASA’s Chief Executive Officer, Mr Sean Rooney, emphasised the quality of the
aged care sector, stating that ‘the overwhelming majority of aged care
providers in Australia are delivering excellent services, underpinned by dedicated
and professional staff’. Mr Rooney
expressed his hope that the Commission would ‘improve information sharing
across existing Government agencies, minimise red tape, and enable a more
efficient regulatory system’.[86]
However, the Combined Pensioners and Superannuants
Association (CPSA) was less optimistic about the state of aged care services in
Australia and the impact of the new Commission on the quality of care:
The new Aged Care Quality and Safety Commission will not
change anything until objectively measurable aged care quality standards are
introduced and nursing homes are compelled to hire sufficient and adequately
qualified staff to meet those standards.[87]
The Australian Nursing and Midwifery Federation (ANMF) has
argued that chronic understaffing is the core of problems in the quality of
aged care, and is calling for mandated minimum staffing ratios and skill mix.[88]
The Australian Medical Association (AMA) has also called for regulation around
minimum acceptable staffing levels in residential aged care facilities, as well
as calling for the Commission to recommend ways to improve the aged care
system, on the basis of its work.[89]
Although in the minority, some stakeholders do not support
the establishment of the Commission. With the Royal Commission into Aged Care
Quality and Safety announced shortly after the introduction of the current
Bills into the Parliament, some stakeholders expressed the view that establishing
the Commission while the Royal Commission is underway is unproductive.[90]
Financial
implications
According to the Explanatory Memorandum, the Bill will
have no financial impact.[91]
The Commission will be partly funded by combining existing budget allocations
for the Quality Agency and Complaints Commissioner and partly funded by fees
charged by the Commission for services.[92]
Measures to improve the quality of aged care were included
in the 2018–19 Budget, one of which was $253.8 million over four years
to establish the Commission.[93]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bills’ compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Bills are compatible.[94]
The Government regards the Principal Bill to be compatible
because it supports rights to an adequate standard of living and health and as
well as rights to protection from exploitation, violence and abuse. The Principal
Bill includes protections for personal information collected by staff about
individuals.[95]
Under these provisions, the penalty for using or disclosing protected
information for unpermitted uses is imprisonment for a maximum period of two
years. The Commissioner ‘may disclose personal information in a limited range
of circumstances’ for example, public interest, and risk to health or safety of
an aged care consumer.[96]
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights reported
on the Principal Bill on 17 October 2018.[97]
The Committee raised concerns with the Bill’s information provisions. It
requested advice from the Minister as to:
- whether
the power of the Aged Care Quality and Safety Commissioner to disclose
protected information (clause 61) is a proportionate limitation on the
right to privacy, including:
- whether
information may be disclosed to organisations that are not covered by the Privacy
Act 1988 (Cth)
- to
what factors the Commissioner will have regard in disclosing information where
necessary for the ‘public interest’ (which is undefined in the Bill) (paragraph
61(1)(a)) and
- whether
the power to disclose information pursuant to rules (paragraph 61(1)(j))
is ‘sufficiently circumscribed and accompanied by adequate safeguards’—the
Committee requested a copy of the proposed rules, if available
- the
proportionality of the Bill’s information sharing provisions (clauses 56 to
58) in relation to the right to privacy, including whether personal
information can be shared and published and if so, whether the circumstances in
which this can occur are sufficiently prescribed and
- in
relation to the prohibition on the use or disclosure of protected information
under clause 60, whether the reversal of the evidential burden of proof
is compatible with the right to be presumed innocent.[98]
At the time of writing, the Minister’s response had been
received by the Committee, but not published.[99]
The Consequential Bill did not raise human rights
concerns.[100]
Key issues
and provisions
Existing
legislative scheme
As explained above, responsibility for aged care quality
regulation is currently divided between three entities, and is contained in a
range of Acts, legislative instruments, guidelines and other policies.
The Aged Care Complaints Commissioner is a statutory
office established under the Aged Care Act 1997.
The Commissioner’s complaints-handling functions are primarily set out under
the Aged Care Act and the Complaints Principles
2015.
The Aged Care Quality Agency is an independent statutory
agency established under the Aged Care Quality
Agency Act 2013. A range of matters relating to its functions,
including in relation to accreditation, quality reviews and monitoring, are set
out in the Quality
Agency Principles 2013.[101]
The responsibilities of the DoH in regards to approval of providers and
regulatory action in response to non-compliance are provided for under the Aged
Care Act.
The Aged Care (Single Quality Framework) Reform Act
2018, which will commence on 1 July 2019, replaces four sets of
standards applying to different types of aged care with a single set of Aged
Care Quality Standards.
Scope of the proposed framework
The Principal Bill proposes bringing together the
functions of the Complaints Commissioner and the Quality Agency into a single
body, the Aged Care Quality and Safety Commission. The Bill does not transfer
the DoH’s approval and enforcement functions to the proposed Commission;
however, the Government intends that subsequent legislative amendments will
transfer these functions to the Commission from 1 January 2020. This
is discussed further below.
The object of the Principal Bill, as set out in subclause
5(1), is to establish a regulatory framework that will:
- protect
and enhance the safety, health, well-being and quality of life of aged
care consumers and promote their confidence in the provision of aged
care services and
- promote
engagement with aged care consumers about the quality of care and services
provided by:
- approved
providers of aged care services and
- service
providers of Commonwealth-funded aged care services.
These terms are defined in clause 7. An aged
care consumer is either a care recipient (that is, approved as a
recipient of aged care under the Aged Care Act) or a person who is a
recipient of a Commonwealth-funded aged care service).[102]
An aged care service is defined in the Aged
Care Act, and captures services which provide residential care, home care
and flexible care (discussed above under ‘Types of aged care’).[103]
A Commonwealth-funded aged care service is defined in subclause
8(1) as a service provided under a funded program of a kind specified in
rules made by the Minister (the rules are discussed further below), and is
intended to include the CHSP and NATSIFACP.[104]
An approved provider is a person or body who has been approved as
a provider of aged care under the Aged Care Act, and includes state and territory
governments and authorities, and local government authorities.[105]
Stakeholder comments
Some stakeholders expressed views that the ambit of the
Commissioner’s authority could be extended in various ways. For example, COTA
Australia advocated for My Aged Care and assessment processes to be included in
the scope of the Commission, particularly in relation to complaints.[106]
The New South Wales Nurses and Midwives’ Association expressed hope that the
care provided to people in retirement villages be included in definitions of aged
care or residential aged care.[107]
The South Australian Office of the Public Advocate suggested that family
members, supporters and carers of an aged care consumer should be
included in subclause 5(1) to ensure their involvement in the engagement
process.[108]
Aged Care
Quality and Safety Commission
Part 2 of the Principal Bill establishes the Aged
Care Quality and Safety Commission (Commission), which is a listed entity for
the purposes of the Public
Governance, Performance and Accountability Act 2013 (PGPA Act),
and therefore subject to the governance and accountability requirements of that
Act.[109]
The Commission is made up of the Commissioner and Commission staff.[110]
Clause 13 states that its function is to assist the Commissioner in the
performance of the Commissioner’s functions.
Part 3 establishes the office of the Commissioner.
The Commissioner is appointed by the Minister on a full-time basis, for up to
five years (and may be reappointed).[111]
Remuneration and leave entitlements are to be determined by the Remuneration
Tribunal.[112]
The Minister may determine other terms and conditions applicable to the
Commissioner’s office, and has the power to terminate the appointment for
reasons including: misbehaviour; physical or mental incapacity; bankruptcy;
extended absence; engagement in unapproved paid outside work; or failure to
comply with disclosure requirements under the PGPA Act.[113]
The Minister also has the power to appoint an acting
Commissioner during periods in which the office is vacant or the Commissioner
is absent from duty or Australia, or otherwise unable to perform the duties of
the office.[114]
Commissioner’s
functions
The Bill sets out the functions of the Commissioner in
broad terms. As discussed below, these will be subject to more detailed rules,
and directions made by the Minister.
Clause 16 provides that the Commissioner’s
functions include to ‘protect and enhance the safety, health, well-being and
quality of life of aged care consumers’ and to ‘promote the provision of
quality care and services’ by aged-care service providers. Other functions
include providing advice to the Minister on request; seeking and considering
clinical advice in relation to the performance of its functions; and functions
which may be conferred on the Commissioner by other laws or instruments.
The Commissioner also has the following specific
functions:
- consumer
engagement functions: to develop (in consultation with aged care
consumers) and promote best practice models for engagement between aged care
providers and their consumers[115]
- complaints
functions: to, in accordance with the rules, deal with complaints made
or information given to the Commissioner, in relation to the responsibilities
of aged care providers[116]
- regulatory
functions: these include to, in accordance with the rules, accredit
aged care services, conduct quality reviews and monitor the quality of care and
services provided, as well as to register persons as ‘quality assessors’ for
the purposes of performing functions or exercising powers under the Act or
rules[117]
and
- education
functions: to provide information and education about matters relating
to the Commission’s functions to aged care service providers, aged care
consumers and their representatives, and the public; and to collect, correlate,
analyse and disseminate information relating to the Commissioner’s functions.[118]
Clause 23 provides that the Commissioner may charge
fees for services provided in performance of these functions.
Rules and
directions
The Principal Bill does not provide significant detail
about the way in which the Commissioner is to perform these functions. For
example, it does not set out a complaints-handling process or accreditation
scheme. Instead, these processes and requirements will be contained in rules
made by the Minister, in the form of a disallowable legislative instrument.[119]
Clause 21 contains an extensive—but
non-exhaustive—list of matters relating to the Commissioner’s functions which
the rules may cover. These include, for example:
- the
establishment of a complaints handling scheme, including requirements as to:
how complaints may be made, managed and resolved; relevant considerations for
resolving complaints; actions which may be taken to address such complaints;
and the review or reconsideration of decisions
- the
accreditation of aged care services and circumstances in which a service is
taken to be accredited and
- the
monitoring of the quality of care and services provided, including requirements
for providers to have a written plan and timetable for continuous improvement,
and for the conduct of audits of services in specific circumstances.
The Minister may also give written, binding directions to
the Commissioner about the performance of these functions.[120]
Subclause 22(2) provides that directions must be of a general nature,
and cannot relate to a particular aged care consumer or service provider.[121]
Unlike the rules, the Minister’s directions will not be subject to disallowance
or sunsetting.[122]
Future
functions
Subclause 5(2) further notes that it
is the Parliament’s intention to confer ‘through future legislative change’,
additional functions on the Commissioner relating to matters ‘such as the
approval of providers of aged care and compliance’.
As acknowledged in the Explanatory Memorandum, this refers
to the planned transfer of approval and compliance functions from the DoH to
the Commission from 1 January 2020.[123]
Reporting
requirements
Under clause 54, the Commissioner must give the
Minister a written annual operational plan for each financial year. This must
specify the Commissioner’s priorities for the period; set out the intended
action to be taken during the period to give effect to or further the objectives
set out in the plan; state how the Commissioner will apply the Commission’s
resources to achieve these objectives; and include a risk assessment plan and
performance indicators for the relevant period. The Commissioner is required to
consult the Minister and Advisory Council in preparing the plan (as well as in
preparing a corporate plan as required by the PGPA Act).[124]
Additionally, the Commissioner’s annual report (as
required by the PGPA Act) must include the following information:
- an
assessment of the extent to which the Commission’s operations during the
relevant period have contributed to the priorities identified in the annual
operational plan
- particulars
of any variation of the plan during the period and
- an
evaluation of the Commission’s overall performance against the performance
indicators set out in the plan.[125]
Transitional
provisions
The Consequential Bill provides that things done by, or in
relation to, the CEO of the Quality Agency or Complaints Commissioner before
the transition time will have effect as if they were done by, or in relation
to, the Quality and Safety Commissioner.[126]
Similarly, the Commissioner will be substituted for the CEO of the Quality
Agency or the Complaints Commissioner in any pending court or tribunal
proceedings to which the CEO or Complaints Commissioner is a party.[127]
Stakeholder
comments
Leading Age Services Australia (LASA) has suggested that a
distinct complaints service be maintained within the new agency and that there
be an external and independent review body for decisions made by the Commission
about complaint or accreditation issues.[128]
Some stakeholders have recommended changes to the proposed
reporting requirements. For example, the Queensland Office of the Public
Advocate (QOPA) has suggested the Commissioner should be required to provide
greater detail to the public about its complaints functions, including the type
and nature of complaints received and the outcomes. The QOPA states that
strengthened reporting requirements ‘will facilitate greater system
transparency and accountability’.[129]
Advisory
Council
Part 5 of the Principal Bill establishes the Aged
Care Quality and Safety Advisory Council. The Council’s structure and functions
are largely similar to those of the existing Aged Care Quality Advisory
Council.[130]
The functions of the proposed Advisory Council are to provide advice to:
- the
Commissioner in relation to the Commissioner’s functions (on request or on its
own initiative) or
- the
Minister, at the request of the Minister, in relation to the performance of the
Commissioner’s functions.[131]
The Advisory Council is to consist of a Chair and between
six and ten other members.[132]
Members are appointed by the Minister on a part-time basis for a maximum period
of three years (and can be reappointed).[133]
In making appointments, the Minister must be satisfied that the person has
‘substantial experience or knowledge’ in at least one of the fields specified
at subclause 41(3)—these include: evaluation of quality management
systems; provision of care and services to aged care consumers; aged care or
health consumer issues; geriatrics; gerontology; aged care nursing; public
administration; management; law; or ‘any other appropriate field of expertise’.
Similar provisions apply to the appointment of Advisory
Council members as to the Commissioner—the Minister may determine in writing
the terms and conditions of appointment not set by the Remuneration Tribunal,
and may terminate appointment on the same grounds as those applying to the
Commissioner.[134]
Disclosure
of interests
Clause 45 requires Advisory Council members to give
written notice to the Minister of all interests (whether pecuniary or
otherwise) which conflict or could conflict with the proper performance of the
member’s functions.
Additionally, clause 46 requires a member with an
interest in a matter being considered or about to be considered by the Advisory
Council, to disclose the nature of the interest to a meeting of the Council.
The disclosure must be made as soon as possible after the relevant facts have
come to the member’s knowledge, and must be recorded in the minutes of the
meeting.[135]
The member must not be present during any deliberations by the Advisory Council
on the relevant matter, or take part in any decision in respect of the matter,
unless the Advisory Council determines otherwise.[136]
These same requirements apply to the existing Quality
Advisory Council.[137]
Minister’s
directions
The Minister may give binding, written directions to the
Advisory Council about the performance of its functions.[138]
As with Ministerial directions to the Commissioner, these will be in the form
of a non-disallowable legislative instrument and cannot relate to a specific
aged care consumer or service provider.[139]
The Minister may also give the Advisory Council written directions about the
procedures to be followed in relation to Council meetings. These directions are
not legislative instruments.[140]
Transitional
provisions
The Consequential Bill provides that current members of
the Advisory Council under the Quality Agency Act will be taken to have
been appointed to the Advisory Council under the new legislative scheme for the
balance of their term of appointment.[141]
Numerous stakeholders expressed concern that the Consequential
Bill transfers the current members of the Aged Care Quality Agency Advisory
Council to the Commission Advisory Council. For example, Painaustralia stated:
Reinstating its current members to the new Aged Care Safety
and Quality Commission will only perpetuate the executive level disregard for
consumer safety and quality that has led to the instigation of a Royal
Commission.[142]
Information
sharing
Part 7 of the Principal Bill deals with the
authorised and unauthorised use and disclosure of information. These provisions
are similar to existing provisions under the Aged Care Act and Quality
Agency Act.[143]
Sharing and
publication of information
Clauses 56 and 57 authorise the sharing of
information between the Commissioner and Secretary of the Department of Health.
Clause 56 requires the Commissioner to provide information to the
Secretary for the purposes of the Secretary’s functions or powers, either:
- in
circumstances provided for in the rules or
- on
request by the Secretary, where the Secretary requires the information for the
purposes of their functions or powers and the information is available to the
Commissioner.
If the Commissioner requests the Secretary give them
information that is required for the purpose of their functions or powers, and
the information is available to the Secretary, the Secretary must give the
information to the Commissioner.[144]
Clause 58 gives the Minister the power to require
the Commissioner to prepare for the Minister a report about one or more
specified matters or a document setting out specified information, in relation
to the performance of the Commissioner’s functions. The Minister may publish (on
the internet or otherwise) this report or document.[145]
Publication
of information
Clause 59 states that the Commissioner may
make publicly available certain information about an aged care service,
including:
- the
name and address of the service and the approved provider
- the
number of places, services provided and facilities available through the
service
- information
about the service’s status under this Act and the Aged Care Act (such as
its accreditation record) and its performance in relation to its statutory
responsibilities
- any
action taken to protect the welfare of care recipients receiving care through
the service, and reasons for the action and
- any
other information of a kind specified in the rules.
However, the information disclosed must not include
personal information—that is, information or an opinion about an individual
(whether true or not) whose identity is apparent or can reasonably be
ascertained from the information or opinion.[146]
This appears largely equivalent to the existing power of
the CEO of the Quality Agency to publish information about an aged care
service.[147]
The Secretary has the same powers under the Aged Care Act.[148]
Stakeholder comments
Stakeholders have raised concerns that these disclosure
requirements are discretionary. The NSW Nurses and Midwives Association has
argued that ‘the suggestion that the Commission may not make information about
an aged care facility or service publicly available is not fully transparent’,
and has recommended that clause 59 be amended to require information be
made publicly available unless it is not in the public interest.[149]
A number of stakeholders have suggested that the Commissioner be required to
publicise information on matters including staffing ratios, the skill mix of
staff, as well as safety and quality outcomes.[150]
Clause 59 refers only to information about aged
care services; unlike other provisions in the Bill it does not specify
Commonwealth-funded aged care services.[151]
It is unclear why such services are not captured. In their Additional Comments
to the Senate Inquiry report, the Greens stated that they ‘want to see
Commonwealth-funded aged care services included in this section’.[152]
Protected
information and permitted disclosures
The Aged Care Act and Quality Agency Act
both include offences relating to using or disclosing protected information.[153]
The Principal Bill contains an equivalent offence at clause 60. This
provides that a person commits an offence if they make a record of, use or
disclose protected information obtained in the course of
performing functions or exercising powers under the Act. There is a maximum
penalty of two years’ imprisonment.[154]
Protected information is defined as information acquired under, or
for the purposes of, the Act or rules that:
- is
personal information or
- relates
to the affairs of an approved provider or a service provider of a
Commonwealth-funded aged care service.[155]
Subclause 60(3) provides for exceptions to the
offence where the person makes the record or uses/discloses the information in
the course of performing functions or exercising powers under this Act, the
rules, the Aged Care Act or Aged Care Principles; where the conduct is
authorised by the person or body to whom the information relates; or where the
conduct is otherwise authorised by this Act, the rules, or by another Act. Subclause
60(4) sets out further exceptions where the disclosure is to the person or
body to whom the information relates or to the Minister or Secretary. The
defendant bears an evidential burden to establish that one of these exceptions
applies.[156]
Under clause 61, the Commissioner is permitted to
disclose protected information in certain circumstances. This includes where he,
or she, determines in writing that it is ‘necessary in the public interest’ to
disclose the information in a particular case.[157]
Other examples of permitted disclosures include where the Commissioner
reasonably believes it is necessary to prevent or lessen a serious risk to the
safety, health or well-being of an aged care consumer,[158]
or for the purposes of reporting a breach of professional standards of conduct,[159]
or for law enforcement purposes.[160]
Protected information may also be disclosed to a court or other investigative
body in limited circumstances.[161]
However, a person who receives information from the Commissioner under clause
61 will nonetheless commit an offence if they make a record of, use or
disclose the information for a different purpose.[162]
A maximum penalty of two years’ imprisonment applies.
Additionally, paragraph 61(1)(j) permits
disclosures to a person of a kind specified in the rules, for the purposes
specified in the rules in relation to persons of that kind. As noted above, the
Parliamentary Joint Committee on Human Rights raised concerns about this
provision, stating:
It is not clear...whether the rules will contain safeguards on
the disclosure of personal information, such as requiring the consent of the
person affected, or providing for review of the disclosure by an independent
body. A copy of the proposed rules would assist in this respect.[163]
Entry and
search powers
Existing
arrangements
Under the current regulatory arrangements, the Complaints
Commissioner is responsible for appointing authorised complaints officers to exercise
certain ‘complaints powers’ under the Aged Care Act.[164]
These include powers to enter and conduct searches of premises, and to ask
persons at the premises to answer questions or produce documents.
In comparison, quality assessors engaged by the Quality
Agency to assess residential and home care services are registered in
accordance with the Quality Agency Act and Quality Agency Principles.[165]
Quality assessors have the power to conduct audits (including unannounced
audits) to assess a residential care or flexible care service for accreditation
or re-accreditation, and review an approved provider’s performance against the
relevant standards.[166]
They also carry out site visits in conducting quality reviews of home care
services.[167]
Access to such services is subject to the Accountability Principles 2014.[168]
Appointment
of complaints officers and other officials
Part 8 of the Principal Bill maintains both types
of officials—complaints officers and quality assessors—with both having the
power to search and enter premises. Clause 73 provides that the
Commissioner may appoint staff members of the Commission as authorised
complaints officers, to exercise certain search and entry powers, or
for other purposes provided in the rules.[169]
The Commissioner must not make an appointment unless satisfied that the person
has suitable training or experience to properly perform the functions, or
exercise the powers, of an authorised complaints officer.[170]
An authorised complaints officer must comply with any directions of the Commissioner.[171]
In comparison, the registration, requirements and
functions of quality assessors will be dealt with in the rules.[172]
The Commissioner must cause an identity card to be issued
to a person who is an authorised complaints officer or quality assessor—such
persons must carry the card at all times when performing the relevant
functions.[173]
Exercise of
powers
Division 2 of Part 8 deals with the powers
of authorised complaints officers; Division 3 of Part 8 deals
with the powers of regulatory officials (defined as the
Commissioner and quality assessors).[174]
The powers are the same for each, though exercised for different purposes.
Under clause 65, an authorised complaints officer
may, in certain circumstances:
- enter
any premises and
- exercise
search powers in relation to the premises
for the purposes of the Commissioner resolving a complaint
or dealing with information, in accordance with the rules, about an aged care
provider’s responsibilities.
Clause 68 provides the same powers may be exercised
by a regulatory official if the Commissioner considers it necessary for a
‘regulatory purpose’. This may relate to the accreditation, quality review or
monitoring of the quality of care and services provided by an aged care
provider.[175]
These powers can only be exercised with the consent of the
occupier of the premises.[176]
Clauses 66 and 69 set out certain requirements for consent—the occupier
must be informed that they can refuse or withdraw consent, and the consent must
be voluntary to have effect.[177]
However, where the occupier is an approved provider, they have a responsibility
under the Aged Care Act to cooperate with the officer or official
exercising powers to enter and search premises, and may be subject to sanctions
for non-compliance.[178]
An officer or official who has entered premises may
request a person at the premises to answer questions and produce any documents
or records.[179]
A person is not required to comply with such a request; however, as noted
above, they may have obligations under the Aged Care Act to cooperate.[180]
Clauses 71 and 72 set out the search powers
available to an authorised complaints officer or regulatory official who has
entered premises in accordance with the Act. These include the power to search
the premises, observe any activity, take photos or make recordings, inspect,
take extracts from or make copies of documents, and to operate electronic
equipment on the premises.
Stakeholder
comments
A number of stakeholders expressed concern that the search
and entry powers provided in the Principal Bill are insufficient, particularly
due to the requirement that the occupier consent to the entry. For example, the
Victorian Office of the Public Advocate has suggested the requirement for
voluntary consent:
... inhibits the capacity of an authorised complaints officer
to effectively investigate a complaint where their admission to an aged care
facility rests on the consent of the occupier...This seems manifestly inadequate.[181]
The Queensland Nurses and Midwives Union similarly noted
that this requirement allows the occupier the opportunity to deny access to
authorised officers until they can rectify staffing or other deficits.[182]
The Community and Public Sector Union (CPSU) proposed that the Bill be amended
so that the provider be restricted to specific reasons for denying consent to
Commission staff to enter the premises, such as an outbreak of a contagious
illness.[183]
Rule-making
The Minister’s rule-making power is contained in clause
77. This provides that the Minister may make rules prescribing matters as
required or permitted by the Act, or that are necessary or convenient to be
prescribed for carrying out or giving effect to the Act. Rules made by the
Minister will take the form of a disallowable legislative instrument.[184]
Subclause 77(2) sets out some limitations on this power, stating that
the rules may not create an offence or civil penalty; provide powers of arrest,
detention, entry, search or seizure; impose a tax; provide for an appropriation
from the Consolidated Revenue Fund; or directly amend the text of the Act.
Subclause 77(3) provides that the rules may apply,
adopt or incorporate (with or without modification) any matter contained in any
other instrument or writing ‘as in force or existing from time to time’. This
effectively overrides the presumption in the Legislation Act against
such incorporation.[185]
The Explanatory Memorandum states that this will allow the rules to incorporate
the Quality Framework, as it is amended from time to time.[186]
Other provisions
Delegation
Clause 76 of the Principal Bill states that the
Commissioner may delegate to a member of the Commission staff ‘all or any’ of
the Commissioner’s functions or powers under the Act or rules. The delegate is
required to comply with any written directions of the Commissioner.
Consequential
amendments
The Consequential Bill contains a range of consequential
amendments to the existing aged care laws. Part 1 of Schedule 1
repeals the Quality Agency Act and the Australian Aged Care Quality
Agency (Transitional Provisions) Act 2013. This will effectively abolish
the Quality Agency.
Part 2 of Schedule 1 makes consequential
amendments to the Aged Care Act. These include:
- replacing
references to the Complaints Commissioner and CEO of the Quality Agency with
references to the Quality and Safety Commissioner[187]
- repealing
existing Parts 6.4A and 6.6 of the Act, which respectively deal with complaints
and authorised complaints officers and the office of the Complaints
Commissioner[188]
and
- removing
obsolete references, such as to the Complaints Commissioner and authorised
complaints officers, the Complaints Principles, Accountability Principles,
Quality Agency Reporting Principles and User Rights Principles.[189]
The amendments in Parts 1 and 2 commence on
the later of the day after Royal Assent and the commencement of the Quality
and Safety Commission Act, and are contingent on the passage of that Act.[190]
Part 3 of Schedule 1 contains two
consequential amendments to provisions of the Aged Care Act and Freedom of
Information Act 1982 which are to be amended by the Single Quality
Framework Reform Act. These replace references to the Quality Agency Act
with the Quality and Safety Commission Act.[191]
The two amendments will commence immediately after the commencement of the Single
Quality Framework Reform Act (being 1 July 2019).[192]
Schedule 2 of the Consequential Bill contains
application and transitional provisions, which have been discussed above in
relation to the Principal Bill. Schedule 2 will commence on the later of
the day after Royal Assent and the commencement of the Quality and Safety
Commission Act, and is contingent on the passage of that Act.[193]
Concluding comments
The Bills establish the Aged Care Quality and Safety
Commission as a new independent statutory body, bringing together the regulatory
functions of the current Australian Aged Care Quality Agency and the Aged Care
Complaints Commissioner from 1 January 2019. The Bills also signal the
Parliament’s future intention to enact legislative change that will confer the
regulatory functions of the Department of Health—accreditation of approved
providers and compliance functions—to the Commission. The Principal Bill establishes
the Commission and the Consequential Bill deals with the consequential matters that
are required to transfer operations from the Australian Aged Care Quality
Agency and Aged Care Complaints Commissioner to the new Commission.
The Bills were introduced in an environment of heightened
public concern about and political focus on the quality of aged care. The
establishment of the Commission responds to the first recommendation of the
Carnell Paterson review. The Commission is intended to address the problems of fragmentation
in the regulatory system that the Carnell Paterson review identified and to
enhance the safety, well-being and quality of life of aged care consumers.
The Aged Care Quality and Safety Commission is to be
established at the same time as the Royal Commission into Aged Care Quality and
Safety is underway. The Royal Commission will undoubtedly have implications for
the new Commission and its operations. Some stakeholders have suggested the
establishment of the new Commission should be deferred until after the Royal
Commission reports its findings; however, other stakeholders consider that
reforms to aged care quality and safety regulation cannot wait until the Royal
Commission reports in 2020 and that more immediate action is needed.
A challenge for the Aged Care Quality and Safety
Commission as it establishes itself will be the heightened public focus that
the Royal Commission will inevitably bring to it and the sector. It will not
just be stakeholders, but also the media and the public who will be watching
closely to see if and how the new Commission differentiates itself from the
previous regulatory system—one which oversaw and was not able to detect or
prevent significant failures of care and neglect.
[1]. D
Tune, Legislated
review of aged care 2017, Department of Health (DoH), Canberra, 2017,
p. 6.
[2]. A
Grove, Aged
care: a quick guide, Research paper series, 2016–17, Parliamentary
Library, Canberra, 2016, p. 1.
[3]. Ibid.,
p. 4.
[4]. DoH,
2016–17
report on the operation of the Aged Care Act 1997, DoH, Canberra, 2017,
p. 24.
[5]. Ibid.,
pp. 30–1.
[6]. Ibid.,
p. 3.
[7]. Ibid.
[8]. Ibid.,
p. 8; DoH, Commonwealth
Home Support Programme—Program Manual 2018, DoH, Canberra, 2018; DoH, National
Aboriginal and Torres Strait Islander Flexible Aged Care Program—Program Manual
2018, DoH, Canberra, 2018.
[9]. A
Grove, Aged
Care (Single Quality Framework) Reform Bill 2018, Bills digest, 119,
2017–18, Parliamentary Library, Canberra, 2018, pp. 4–5.
[10]. Australian
Aged Care Quality Agency (Quality Agency), ‘Memoranda
of understanding’, Quality Agency website.
[11]. DoH,
Single
Aged Care Quality Framework: options for assessing performance against aged
care quality standards, Options paper, DoH, Canberra 2017, p. 30.
[12]. Ibid.
[13]. DoH,
‘Aged
care – sanctions and notices of non-compliance’, DoH website, last updated
6 April 2017.
[14]. Quality
Agency Act, section 7.
[15]. DoH,
Single
Aged Care Quality Framework: options for assessing performance against aged
care quality standards, op. cit., pp. 7–8.
[16]. Ibid.,
pp. 9–10.
[17]. See
A Grove, Aged
Care (Single Quality Framework) Reform Bill 2018, op. cit.
[18]. Aged
Care Act, Part 6.6; Aged Care Complaints Commissioner, ‘The
Complaints Commissioner and the staff’, Aged Care Complaints Commissioner
website, last updated 29 November 2017.
[19]. Aged
Care Complaints Commissioner, ‘The
Complaints Commissioner and the staff’, op. cit.
[20]. DoH,
Single
Aged Care Quality Framework: options for assessing performance against aged
care quality standards, op. cit., p. 30.
[21]. Aged
Care Complaints Commissioner, ‘What
is a direction?’, Fact sheet, Aged Care Complaints Commissioner website,
last updated 29 November 2017.
[22]. Aged
Care Complaints Commissioner, ‘Referrals
to other organisations we work with’, Aged Care Complaints Commissioner
website, last updated 29 November 2017.
[23]. A
Groves, D Thomson, D McKellar and N Procter, The
Oakden Report, SA Health, Department for Health and Ageing, Adelaide,
2017.
[24]. SA
Health, ‘Oakden
Older Persons Mental Health Service Review’, SA Health website.
[25]. K
Wyatt (Minister for Aged Care and Minister for Indigenous Health), Appointment
of panel to review national aged care quality regulatory processes,
media release, 11 May 2017.
[26]. K
Carnell and R Paterson, Review
of national aged care quality regulatory processes, DoH, Canberra, October 2017,
p. 4.
[27]. Ibid.
[28]. Ibid.
[29]. Ibid.,
recommendation 1, p. xi.
[30]. Ibid.,
recommendation 2.
[31]. Ibid.,
recommendation 3.
[32]. Ibid.,
recommendation 4, p. xii.
[33]. Ibid.,
recommendation 5.
[34]. Ibid.,
recommendation 6.
[35]. Ibid.,
recommendation 7.
[36]. Ibid.,
recommendation 8, p. xiii.
[37]. Ibid.,
recommendation 9.
[38]. Ibid.,
recommendation 10.
[39]. K
Wyatt (Minister for Aged Care and Minister for Indigenous Health), Quality
review released: aged care assessment visits to be unannounced, media
release, 25 October 2017.
[40]. K
Wyatt (Minister for Aged Care and Minister for Indigenous Health), Powerful
new reforms to ensure safe, quality aged care, media release, 18 April
2018.
[41]. G
Hunt (Minister for Health) and K Wyatt (Minister for Senior Australians and
Aged Care and Minister for Indigenous Health), New
era in aged care begins with first Quality and Safety Commissioner announced,
media release, 24 October 2018.
[42]. Senate
Standing Committee on Community Affairs, 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, inquiry homepage,
The Senate, Canberra.
[43]. Standing
Committee on Community Affairs, 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: interim report,
The Senate, Canberra, 13 February 2018, recommendation 1, p. 67.
[44]. Ibid.,
recommendation 2, p. 68.
[45]. Australian
Government response to the Senate Standing Committee on Community Affairs
interim report: 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, June 2018.
[46]. Standing
Committee on Community Affairs, 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, inquiry homepage.
[47]. House
of Representatives Standing Committee on Health, Aged Care and Sport, Inquiry
into the Quality of Care in Residential Aged Care Facilities, inquiry
homepage.
[48]. Standing
Committee on Health, Aged Care and Sport, Inquiry
into the quality of care in residential aged care facilities in
Australia—report, House of Representatives, Canberra, October 2018,
recommendation 1, p. 52.
[49]. Ibid.,
recommendation 2.
[50]. Ibid.,
recommendation 3.
[51]. Ibid.,
recommendation 10, p. 96.
[52]. Ibid.,
recommendation 6, p. 53.
[53]. Australian
Broadcasting Corporation (ABC), ‘Who cares?’, Four
Corners, ABC website, updated 20 September 2018.
[54]. S
Morrison (Prime Minister), G Hunt (Minister for Health), and K Wyatt (Minister
for Senior Australians and Aged Care), Royal
Commission into aged care quality and safety, media release, 16
September 2018.
[55]. S
Morrison (Prime Minister), G Hunt (Minister for Health), and K Wyatt (Minister
for Senior Australians and Aged Care), Appointment
of Royal Commissioners and Terms of Reference, media release, 9 October
2018.
[56]. Ibid.
[57]. Details
of the inquiry are available on the inquiry’s
homepage.
[58]. Senate
Community Affairs Legislation Committee, Aged
Care Quality and Safety Commission Bill 2018 [Provisions] and Aged Care Quality
and Safety Commission (Consequential Amendments and Transitional Provisions)
Bill 2018 [Provisions], report, The Senate, Canberra, 2018, p. 27.
[59]. Ibid.,
p. 27.
[60]. Australian
Greens, Additional comments, Senate Community Affairs Legislation Committee, Aged
Care Quality and Safety Commission Bill 2018 [Provisions] and Aged Care Quality
and Safety Commission (Consequential Amendments and Transitional Provisions)
Bill 2018 [Provisions], report, The Senate, Canberra, 2018, p. 29.
[61]. K
Wyatt (Minister for Senior Australians and Aged Care and Minister for
Indigenous Health), ‘Second
reading speech: Aged Care Quality and Safety Commission Bill 2018’, House
of Representatives, Debates, (proof), 12 September 2018, p. 9.
[62]. Senate
Community Affairs Legislation Committee, Aged
Care Quality and Safety Commission Bill 2018 [Provisions] and Aged Care Quality
and Safety Commission (Consequential Amendments and Transitional Provisions)
Bill 2018 [Provisions], op. cit., pp. 30–1.
[63]. Ibid.,
pp. 32–3.
[64]. Ibid.,
p. 39.
[65]. Senate
Standing Committee on the Scrutiny of Bills, Scrutiny
digest, 11, 19 September 2018, pp. 1–9.
66. Senate
Standing Committee on the Scrutiny of Bills, Scrutiny
digest, 12, 2018, The Senate, Canberra, 17 October 2018, p. 67.
[67]. Ibid.,
p. 68.
[68]. Ibid.
[69]. Ibid.,
p. 71.
[70]. Ibid.,
p. 74.
[71]. Ibid.
[72]. Ibid.,
p. 77.
[73]. Ibid.
[74]. Ibid.,
p. 70.
[75]. Ibid.,
p. 73.
[76]. Ibid.,
p. 76.
[77]. Ibid.
[78]. Ibid.,
p. 78.
[79]. Ibid.,
pp. 70, 73–4 and 76.
[80]. Ibid.,
pp. 70, 74, 76 and 78.
[81]. R
Siewert, Greens
welcome start of reforms to ensure older Australians are safe in aged care but
more needs to be done, media release, 18 April 2018.
[82]. J
Collins, ‘Second
reading speech: Aged Care Quality and Safety Commission Bill 2018, Aged Care
Quality and Safety Commission (Consequential Amendments and Transitional
Provisions) Bill 2018’, House of Representatives, Debates, (proof),
19 September 2018, p. 94.
[83]. Talking
Aged Care, ‘Responses
to aged care commission come rolling in’, Aged Care Guide website.
[84]. COTA
Australia, COTA
welcomes landmark protections for older Australians, media release, 12
September 2018.
[85]. Leading
Age Services Australia (LASA), LASA
welcomes Government response to Carnell Paterson Review recommendations,
media release, 18 April 2018.
[86]. Ibid.
[87]. Combined
Pensioners and Superannuants Association (CPSA), New
quality and safety commission: cosmetic makeover, media release, 18
April 2018.
[88]. Australian
Nursing and Midwifery Federation, Better
staffing will fix the crisis in aged care, media release, 17 April
2018.
[89]. Australian
Medical Association, Nurse-to-resident
ratio needed in aged care facilities, media release, 5 October 2018.
[90]. CPSA,
Submission
to Senate Standing Committee on Community Affairs, Inquiry into Aged Care
Quality and Safety Commission Bill 2018 [and related Bill], [Submission
no. 21], September 2018, p. 4; Aged Care Crisis, Submission
to Senate Standing Committee on Community Affairs, Inquiry into Aged Care
Quality and Safety Commission Bill 2018 [and related Bill], [Submission
no. 28], 5 October 2018.
[91]. Explanatory
Memorandum, Aged Care Quality and Safety Commission Bill 2018, p. 2.
[92]. Ibid.
[93]. Australian
Government, Budget
measures: budget paper no. 2: 2018–19, p. 118.
[94]. The
Statements of Compatibility with Human Rights can be found at pages 3–4 of the Explanatory
Memorandum to the Principal Bill and pages 2–3 of the Explanatory
Memorandum to the Consequential Bill.
[95]. Explanatory
Memorandum, Aged Care Quality and Safety Commission Bill 2018, p. 3.
[96]. Ibid.
[97]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 11, 17 October 2018, pp. 2–8.
[98]. Ibid.
[99]. Parliamentary
Joint Committee on Human Rights, Correspondence
register, Australian Parliament website.
[100]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 10, 18 September 2018, p. 20.
[101]. Also
see: Australian
Aged Care Quality Agency (Other Functions) Instrument 2015.
[102]. Principal
Bill, clause 7 (definition of aged care consumer).
[103]. Principal
Bill, clause 7 (definition of aged care service); Aged
Care Act, Schedule 1 (definitions of aged care service and aged
care).
[104]. Explanatory
Memorandum, Aged Care Quality and Safety Commission Bill 2018, op. cit., p.
6.
[105]. Principal
Bill, clause 7 (definition of approved provider); Aged
Care Act, Schedule 1 (definition of approved provider).
[106]. COTA
Australia, Submission
to Senate Standing Committee on Community Affairs, Inquiry into Aged Care
Quality and Safety Commission Bill 2018 [and related Bill], [Submission
no. 7], September 2018, p. 7. My Aged Care is the initial point of access
for people to apply for Australian Government-funded aged care services.
[107]. New
South Wales Nurses and Midwives’ Association (NSWNMA), Submission
to Senate Standing Committee on Community Affairs, Inquiry into Aged Care
Quality and Safety Commission Bill 2018 [and related Bill], [Submission
no. 2], September 2018, p. 6.
[108]. Office
of the Public Advocate (South Australia), Submission
to Senate Standing Committee on Community Affairs, Inquiry into Aged Care
Quality and Safety Commission Bill 2018 [and related Bill], [Submission
no. 27], 4 October 2018, p. 2.
[109]. Principal
Bill, paragraph 11(2)(a).
[110]. Principal
Bill, clause 12.
[111]. Ibid.,
clause 24.
[112]. Ibid.,
clauses 26 and 27.
[113]. Ibid.,
clauses 29 and 31.
[114]. Ibid.,
clause 25.
[115]. Ibid.,
paragraph 16(1)(c) and clause 17.
[116]. Ibid.,
paragraph 16(1)(d) and clause 18.
[117]. Ibid.,
paragraph 16(1)(e) and clause 19.
[118]. Ibid.,
paragraph 16(1)(f) and clause 20.
[119]. Ibid.,
clause 77.
[120]. Ibid.,
subclause 22(1).
[121]. Subclause
22(4) of the Principal Bill provides that these directions are subject to
the Public
Service Act 1999 and PGPA Act.
[122]. See
the note to subclause 22(1) of the Principal Bill.
[123]. Explanatory
Memorandum, Aged Care Quality and Safety Commission Bill 2018, p. 5.
[124]. Principal
Bill, subclause 54(3) and clause 53. Note that annual
operational plans are not legislative instruments and so are not subject to
disallowance by the Parliament.
[125]. Ibid.,
clause 52.
[126]. Consequential
Bill, Schedule 2, item 2.
[127]. Ibid.,
Schedule 2, item 9.
[128]. Leading
Age Services Australia (LASA), Submission
to Senate Standing Committee on Community Affairs, Inquiry into Aged Care
Quality and Safety Commission Bill 2018 [and related Bill], [Submission
no. 11], 3 October 2018, p. 5.
[129]. Queensland
Office of the Public Advocate (QOPA), Submission
to Senate Standing Committee on Community Affairs, Inquiry into Aged Care
Quality and Safety Commission Bill 2018 [and related Bill], [Submission
no. 32], September 2018, p. 4.
[130]. Quality
Agency Act, Part 4.
[131]. Principal
Bill, clause 38.
[132]. Ibid.,
clause 40.
[133]. Ibid.,
subclauses 41(1)–(2).
[134]. Ibid.,
clauses 48 and 49.
[135]. Ibid.,
subclauses 46(2)–(3).
[136]. Ibid.,
subclauses 46(4)–(6).
[137]. Quality
Agency Act, sections 39–40.
[138]. Principal
Bill, subclause 39(1).
[139]. Ibid.,
subclauses 39(1)–(2).
[140]. Ibid.,
clause 50.
[141]. Consequential
Bill, Schedule 2, item 3.
[142]. Painaustralia,
Submission
to Senate Standing Committee on Community Affairs, Inquiry into Aged Care
Quality and Safety Commission Bill 2018 [and related Bill], [Submission
no. 19], September 2018, p. 4.
[143]. Aged
Care Act, Part 6.2; Quality Agency Act, Part 7.
[144]. Principal
Bill, clause 57.
[145]. Ibid.,
subclause 58(4).
[146]. Ibid.,
subclause 59(2). Personal information is defined under clause
7.
[147]. Quality
Agency Act, section 52.
[148]. Aged
Care Act, section 86-9.
[149]. NSW
Nurses and Midwives’ Association, Submission
to Senate Standing Committee on Community Affairs, Inquiry into Aged Care
Quality and Safety Commission Bill 2018 [and related Bill], [Submission
no. 2], September 2018, p. 7.
[150]. Queensland
Nurses and Midwives’ Union (QNMU), Submission
to Senate Standing Committee on Community Affairs, Inquiry into Aged Care
Quality and Safety Commission Bill 2018 [and related Bill], [Submission
no. 5], September 2018, pp. 7–8; Federation of Ethnic Communities'
Councils of Australia (FECCA), Submission
to Senate Standing Committee on Community Affairs, Inquiry into Aged Care
Quality and Safety Commission Bill 2018 [and related Bill], [Submission
no. 26], 3 October 2018, pp. 2–3; Quality Aged Care Action Group
Incorporated (QACAG), Submission
to Senate Standing Committee on Community Affairs, Inquiry into Aged Care
Quality and Safety Commission Bill 2018 [and related Bill], [Submission
no. 1], 20 September 2018, p. 4.
[151]. See
COTA, Submission,
op. cit., p. 13.
[152]. Australian
Greens, Additional comments, Senate Community Affairs Legislation Committee,
op. cit., p. 36.
[153]. Aged
Care Act, section 86-2; Quality Agency Act, section 48.
[154]. Principal
Bill, subclause 60(1).
[155]. Principal
Bill, subclause 60(2).
[156]. Notes
to subclauses 60(3)–(4) state that this occurs pursuant to subsection
13.3(3) of the Criminal
Code Act 1995 (Cth).
[157]. Principal
Bill, paragraph 61(1)(a).
[158]. Ibid.,
paragraph 61(1)(e).
[159]. Ibid.,
paragraph 61(1)(f).
[160]. Ibid.,
paragraph 61(1)(h).
[161]. Ibid.,
clause 63. However, disclosure is only permitted if it is required for
the purposes of the Act, the rules or other aged care laws; was originally
disclosed under clause 61 and the disclosure is required for the same
purpose; or the person or body to whom the disclosure relates has consented.
[162]. Ibid.,
clause 62.
[163]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 11, 2018, op. cit., p. 5.
[164]. Aged
Care Act, sections 94B-1 to 94B-5.
[165]. Quality
Agency Act, section 12; Quality Agency Principles, Part 3 of Chapter 2.
[166]. Quality
Agency Principles, sections 2.10–2.17 (in relation to site audits) and
2.35–2.41 (in relation to review audits). Unannounced re-accreditation audits
were introduced in March 2018 via the Australian Aged Care
Quality Agency Legislation Amendment (Unannounced Re-accreditation Audits)
Principles 2018.
[167]. Ibid.,
sections 3.3–3.11. Note that these quality reviews also apply to those flexible
care services through which short-term restorative care is provided in a home
care setting (clause 3.2).
[168]. Accountability
Principles 2014, Part 2.
[169]. Principal
Bill, subclause 73(1).
[170]. Ibid.,
subclause 73(2).
[171]. Ibid.,
subclause 73(3).
[172]. Ibid.,
clause 7 (see definition of quality assessor) and paragraph
21(4)(f).
[173]. Ibid.,
clause 74. It is an offence not to return an identity card within 14
days of ceasing to be an authorised complaints officer/quality assessor: subclauses
74(3)–(4).
[174]. Ibid.,
clause 7 (see definition of regulatory official).
[175]. Ibid.,
subclauses 68(1)–(2).
[176]. Ibid.,
subclauses 65(3) and 68(3).
[177]. Ibid.,
subclauses 66(1)–(2), 69(1)–(2).
[178]. Aged
Care Act, paragraph 63–1(1)(ba). The occupier must be informed of
this obligation: paragraphs 66(1)(b) and 69(1)(b) of the Principal
Bill. Item 6 of Schedule 1 to the Consequential Bill amends paragraph
63-1(1)(ba) to refer to a person exercising powers under Part 8 of the proposed
Aged Care Quality and Safety Commission Act 2018.
[179]. Principal
Bill, subclauses 67(1), 70(1).
[180]. Principal
Bill, subclauses 67(3) and 70(3); also see Notes to subclauses
67(2) and 70(2).
[181]. Victorian
Office of the Public Advocate, Submission
to Senate Standing Committee on Community Affairs, Inquiry into Aged Care
Quality and Safety Commission Bill 2018 [and related Bill], [Submission
no. 24], 2 October 2018, pp. 2–3.
[182]. QNMU,
Submission
to Senate Standing Committee on Community Affairs, Inquiry into Aged Care
Quality and Safety Commission Bill 2018 [and related Bill], op. cit., p. 8.
[183]. Community
Public Sector Union, Submission
to Senate Standing Committee on Community Affairs, Inquiry into Aged Care
Quality and Safety Commission Bill 2018 [and related Bill], [Submission
no. 25], 2 October 2018, p. 2.
[184]. Principal
Bill, subclause 77(1) and Explanatory
Memorandum, Aged Care Quality and Safety Commission Bill 2018, p. 27.
[185]. Legislation
Act 2003, subsection 14(2).
[186]. Explanatory
Memorandum, Aged Care Quality and Safety Commission Bill 2018, p. 27.
[187]. Consequential
Bill, Schedule 1, items 3, 6, 9, 12, 19,
22.
[188]. Ibid.,
Schedule 1, item 16.
[189]. Ibid.,
Schedule 1, items 4, 5, 7, 10, 11,
13, 20, 21.
[190]. Ibid.,
subclause 2(1) (item 2 in table).
[191]. Ibid.,
Schedule 1, items 24 and 25.
[192]. Ibid.,
subclause 2(1) (item 3 in table); Single Quality Framework Reform Act,
section 2.
[193]. Ibid.,
subclause 2(1) (item 4 in table).
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