On 22 August 2018, the House of Representatives Selection Committee referred the Aged Care Amendment (Staffing Ratio Disclosure) Bill 2018 (the Bill) to the Standing Committee on Health, Aged Care and Sport (the Committee) for inquiry. The Committee subsequently adopted the inquiry into the proposed Bill on 13 September 2018.
The Bill proposes to amend the Aged Care Act 1997 (Cth) (the Act) by inserting a new section 9-3C and amending subsections 86-9(1) and 86-9(2).
Summary of Key Provisions
Proposed section 9-3C creates an obligation to notify the Secretary of the Department of Health (the Secretary) of the staff to residential care service recipient ratio.
Proposed subsection 86-9(1A) requires the Secretary to ‘make publicly available any information about’ the staff to residential aged care recipient ratio, as notified under proposed section 9-3C.
Proposed amendment to subsection 86-9(2) has the effect of requiring only the name of the aged care provider, including the names of: directors or management committee of the aged care providers to be disclosed under proposed subsection 86-9(1A).
Proposed Section 9-3C
Proposed subsection 9-3C(1) creates a requirement for an ‘approved aged care provider to notify the Secretary of the ratio of care recipients to staff members, in regard to each residential care service they operate.’
Proposed subsection 9-3C(2) creates a requirement for a ratio to ‘be broken down into ratios for each category’ of staff member as provided for in proposed subsection 9-3C(5).
Proposed subsection 9-3C(3) creates a requirement for part-time staff to be counted ‘as an appropriate fraction of a full-time equivalent.’
Proposed subsection 9-3C(4) provides for the time period for reporting of ratios to the Secretary (in reference to proposed subsection 9-3C(1)) as the annual days as specified in the regulations. Where there are no days specified in the regulations, the annual reporting dates will be: 1 January, 1 April, 1 July and 1 October.
Proposed subsection 9-3C(5) lists the categories of staff member referred to in proposed subsection 9-3C(2). These are: registered nurse levels 1 to 5, enrolled nurse, nurse with a certificate IV or equivalent, personal care attendant, allied health staff, and other staff.
Proposed subsection 9-3C(6) requires that a notification made under proposed subsection 9-3C(1) ‘be made as soon as practicable after the day to which the notification relates.’
Proposed subsection 9-3C(7) requires ‘the notification’ made under proposed subsection 9-3C(1) ‘be in the form approved by the Secretary.’
Proposed subsection 9-3C(8) enables a notification to be made under proposed subsection 9-3C(1) which may include an explanation of no more than 250 words in total, by the approved provider in relation to the notified ratio.
Proposed subsection 9-3C(9) creates a requirement that where there is a change of more than 10 per cent in a notified ratio, the approved provider must, within 28 days notify the Secretary of the change.
Proposed subsection 9-3C(10) provides that the definition of ‘staff member’ be the same as the definition in section 63-1AA of the Act.
Proposed Amendments to Subsection 86-9
Proposed subsection 86-9(1A) requires the Secretary to ‘make publicly available any information about’ the notified ratio.
Proposed amendment to subsection 86-9(2) would require that ‘information disclosed under new subsection 86-9(1A) must not include personal information about a person, except the name of the approved provider of the service and the names of directors, or members of the committee of management, of the approved provider (as per subsection 86-9(1)(g)).’
Purpose of the Bill
The purpose of the proposed Bill is to:
…effect the quarterly publication of ratios of aged care recipients to staff members for each residential care service operated by approved providers, with the aim of creating greater public transparency in the provision of residential care services and informing members of the public in any choice they may make regarding residential care services.
The proposed Bill effects this outcome by putting in place a requirement for residential care service providers to notify the Secretary ‘of the ratios’, who must then arrange for this information to be made public.
These ratios are required to be reported for ‘separate categories of staff member, and … non-full-time staff members’ (counted as an appropriate fraction of full-time equivalent).
As part of this reporting process, the residential care service provider may include ‘an accompanying explanation’ of 250 words or less, which (when included) must also be published with the reported ratio information.
Should there be a change in the ratio of aged care recipients to staff member of more than 10 per cent between quarterly reporting requirements, then the aged care provider ‘must…notify the Secretary within 28 days’ of the event having occurred.
In accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the statement of compatibility with human rights included as an appendix to the Explanatory Memorandum provides that ‘the bill is compatible with human rights as it does not raise any human rights issues.’
Other Issues Underpinning the Bill
The proposed Bill was introduced as a mechanism to assist in better-informing the public about which aged care facility to select, which is usually undertaken during ‘trying circumstances’. In introducing the Bill, Ms Rebekha Sharkie MP stated:
Ageing Australians and their families should not be kept in the dark…This bill would shine a light upon residential aged-care facilities by requiring them to publish their staffing ratios by qualification, and an optional accompanying explanation. There is no cost to government for this transparency.
The reality is that most elderly Australians who move into nursing homes are making their last move in their living circumstances, and it is certainly not a decision that older Australians or their families take lightly. It is a difficult and extremely important decision, all too often made under trying circumstances, and currently those decisions are not being fully informed because important information about the level and quality of expert care that they can expect is being kept from them. … A better informed public is a more discerning public; they have a right to know what they are signing up for.
In addition, the proposed Bill is seeking to partly address community concern about the absence of a mandatory minimum staffing number per resident in residential aged care facilities. In the proposed Bill’s first reading speech, it was explained that:
There was a repeated and insistent call for mandatory minimum staffing ratios for residential aged-care facilities, echoing the sentiments the community has expressed… the contrast is often made …in our community that we have staffing ratios in child care but we [do not] have them in aged care, and why is it that ratios are applied to child care, but not to aged care? There is no good answer to that question.
Another piece of proposed legislation has sought to mandate minimum staffing ratios. Prior to the introduction of the proposed Bill, on 6 September 2017, Senator Derryn Hinch introduced into the Senate, the Aged Care Amendment (Ratio of Skilled Staff to Care Recipients) Bill 2017 (the Senate Bill) in his capacity as a private senator.
The Senate Bill was introduced taking into consideration that:
International research suggests that higher Registered Nurse staffing levels, higher total staffing levels and a high skills mix (ratio of Registered Nurses to other nursing staff) are associated with better quality care…The majority of aged care staff in Australia are personal care attendants or community care workers, with a declining share of Registered Nurses over the last decade or more. In 2016, the average total care hours worked per resident per day were 2.9 hours.
The purpose of the Senate Bill is to:
…introduce the concept of a mandated ratio of skilled staff to care recipients in Australia’s aged care residential facilities… The passage of the Bill would require the Quality of Care Principles to mandate a minimum adequate and safe ratio of appropriately skilled staff to care recipients. This ratio should take into account the number of care recipients receiving care through the aged care service at that time, the type of care and level of care provided.
The Senate Bill is currently before the Senate.
On 13 September 2018, the Minister for Senior Australians and Aged Care, launched the Aged Care Workforce Strategy (the ACW Strategy). The ACW Strategy was the result of a six month consultation and engagement process undertaken by the Aged Care Workforce Strategy Taskforce (the Taskforce). The purpose of the Taskforce ‘was to develop a strategy for growing and sustaining the workforce that provides aged care services and support for older people to meet their care needs in a variety of settings across Australia.’
The resulting report, A Matter of Care – Australia’s Aged Care Workforce Strategy, was delivered to the Minister for Senior Australian’s and Aged Care on 29 June 2018 and included 14 recommendations (strategic actions).
There were a number of recommendations which dealt with staffing. Recommendation 6 provided for the establishment ‘of a new standard approach to workforce planning and skills mix modelling.’ Specifically recommendation 6 states:
With aged care organisations required to demonstrate that the workforce is planned and the number and mix of staff deployed enables the delivery and management of safe and quality care and services, a standard approach to the fundamental elements of workforce planning is needed. The elements are: an organisation’s business model (including model of care offered); profiles of each consumer; development and updating of holistic care plans; organisation of work (staff numbers, composition and skills); reporting and accountability to consumers, including provision for an integrated care and clinical governance committee for coverage of care delivered.
The Department of Health stated that the ACW Strategy ‘recommended an industry-led approach to transparency about staffing levels’.
Further, the Department of Health stated that the ACW Strategy:
…also recognises that the care needs of older Australians are growing increasingly complex, with a high incidence of multiple chronic conditions, including dementia and changing community expectations.
Notwithstanding the acute state of the current and estimated future demand being placed on aged care, the ‘Taskforce did not support the introduction of legislated staff ratios.’
Specifically in regard to staffing levels and mix the ACW Strategy stated:
There is no single optimum number of staff, or combination of staff qualifications, that will result in quality aged care in all circumstances. Rather, the number of staff required will change according to the varying needs of those individuals; the service or facility size and design; the way work is organised, including the extent to which services are outsourced; and, ultimately, the business model.
Following the Taskforce recommendation, the Department of Health stated, ‘the Government is supporting Professor John Pollaers OAM, former Chair of the Taskforce, to facilitate sector implementation of the Strategy.’
Discussion about staffing is contained in Chapter 3 of this report.
Recent and Ongoing Complementary Inquiries and Reviews
On 22 October 2018, the Committee presented its Report on the Inquiry into the Quality of Care in Residential Aged Care Facilities in Australia in the House of Representatives (the Aged Care Inquiry Report).
The Aged Care Inquiry was conducted over a ten month period, received 123 submissions with seven public hearings held across Australia. The Aged Care Report includes 14 recommendations made by the Committee which encompass how the aged care system operates, its mechanisms for identifying, reporting and addressing failings, and proposed reforms for improving the experience of those who do and will access aged care services.
The Committee’s Aged Care Inquiry Report provided a detailed examination of issues around aged care including funding, policy frameworks, reporting, complaints mechanisms and crucially, staffing and associated issues. As a result, recommendations of that report are reiterated where appropriate.
The Aged Care Inquiry was conducted at the same time as the Senate’s Standing Committee on Community Affairs inquiry on 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.
The Senate Community Affairs Committee inquiry is ongoing.
Other significant recent inquiries and reviews into aged care include the:
Australian Law Reform Commission Report: Elder Abuse – A National Legal Response, May 2017
Australian Government’s: Aged Care Legislated Review (Tune Review), September 2017
Productivity Commission Report: Introducing Competition and Informed User Choice into Human Services: Reforms to Human Services, October 2017
Australian Government’s: Review of National Aged Care Quality Regulatory Processes (Carnell-Paterson Review), October 2017
South Australian Independent Commissioner Against Corruption: Oakden: A Shameful Chapter in South Australia’s History, February 2018.
These reviews and inquiries have culminated in the recently announced request by the Australian Government for a Royal Commission into Aged Care Quality and Safety (the Royal Commission).
The Royal Commission was formally established on 8 October 2018 with the Honourable Justice Joseph McGrath and Ms Lynelle Briggs AO appointed as Commissioners.
The Royal Commission will be based in Adelaide and conducted over an
18-month period, with an interim report due by 31 October 2019 and a final report expected by 30 April 2020.
The Royal Commission will have the powers bestowed to it under the Royal Commissions Act 1902 (Cth), which broadly are to summon witnesses and compel the production of documents, with penalties attached for those who fail to do so.
Witnesses will be required to give evidence under oath regardless of exposure to criminal prosecution or civil penalties, and while claims may be made for legal professional privilege, these claims will have to be substantiated and accepted by the Commissioners.
About the Inquiry
Objectives and Scope
The majority of submissions and evidence received in reference to the inquiry supported the premise of the Bill. While complementary policy issues were raised during the course of the inquiry, the focus of the inquiry has been on the practicality of the components of the proposed Bill.
Regardless of the ongoing inquiry into aged care (which the committee was undertaking at the time), a number of community advocacy organisations strongly urged the Committee to conduct a thorough inquiry into the Bill. In this respect, taking into consideration ongoing community concern about various policy aspects arising from the proposed Bill (and other recent inquiries and reviews into aged care), this report also includes evidence received in relation to principal policy issues and concern pertaining to the proposed Bill.
Issues raised in relation to the policy context of the Bill included aged care industry-wide considerations such as:
The practicality and usefulness of gathering statistical information with respect to: uniformity, timing and meaningfulness of trend information;
Arriving at and reporting meaningful performance indicators, including application of a detailed star-rating type system to better inform consumer choice;
Using the Aged Care Funding Instrument to mandate minimum staffing numbers and staffing profile based on resident acuity and care need; and
Delivering and measuring quality outcomes in aged care and the impact of staffing (including rostering considerations) in these areas.
Importantly, the majority of evidence to the Committee suggested that there is solid in principle community support for greater transparency, accountability, and comparability around the publication of statistical information pertaining to staffing levels in aged care.
In addition, the majority of advocacy organisations were of the view that the Bill would provide for a practice of recording and reporting on staffing in aged care which could be further developed over time.
While the majority of evidence to the Committee either makes the case in support of, or in opposition to, minimum mandated staffing levels in aged care, this inquiry is focused on the publication of staffing levels in aged care, in line with the purpose of the Bill.
Discussion on these issues is included in Chapters 2 and 3 of this report.
On 14 September 2018, a media release was issued announcing the inquiry and called for submissions to be received by 4 October 2018.
The Committee received 48 submissions and three exhibits to the inquiry, which are listed at Appendixes A and B respectively.
A roundtable public hearing was subsequently held in Canberra on 26 October 2018.
Witnesses who appeared before the committee at public hearing are listed at Appendix C. A transcript of the evidence provided at the public hearing is available on the committee’s website at www.aph.gov.au/health.
Chapter 1 outlines the components and the purpose of the proposed Bill.
Chapter 2 discusses issues raised in evidence which relate to the new reporting regime under the proposed Bill and associated issues.
Chapter 3 discusses issues raised in evidence to the proposed Bill which relate to mandating minimum staffing levels.