2.1
This instrument makes changes to the User Rights Principles 1997 in
response to the introduction of 'home care' under the Living Longer Living
Better aged care reforms. Among other things, the instrument removes
references to 'community care', which has been replaced by home care, and
replaces these with references to 'home care'; and broadens the permitted uses
for accommodation bonds for capital funding for investment in building stock.
2.2
The instrument also expands the power of an approved provider of home
care to reallocate a care recipient's place. This amendment enables an approved
provider to reallocate the care recipient’s place to another care recipient if:
2.4
The committee sought clarification from the minister as to how the reallocation
of home care services was compatible with the right to health and an adequate
standard of living. In particular, the committee sought clarification
regarding:
Before a care recipient begins receiving home care, the User
Rights Principles require that a home care agreement must be offered to the
prospective care recipient and the approved provider must provide the
prospective care recipient with guidance (and, if appropriate, interpreter
services) to understand the terms and effect of the proposed agreement (see
section 23.93 of the User Rights Principles). The home care agreement must
include, among other matters, conditions under which either party may terminate
the home care services (see paragraph 21.95(d) of the User Rights Principles).
The approved provider must also give the prospective care
recipient a copy of the Charter and assist them to understand it (see item 5 of
the rights specified in the Charter). These provisions are designed to ensure
that a care recipient is made aware of his or her rights and responsibilities
and understands the circumstances in which they could place their security of
tenure at risk.
If an approved provider were to seek to rely on a care
recipient's failure to meet his or her responsibilities under the Charter to
reallocate the care recipient's home care place, the care recipient would have the
avenues of assistance and appeal outlined below, which include recourse to the
Aged Care Complaints Scheme. In interpreting the Charter, Complaints Scheme
officers adopt a reasonable person test.
The Commonwealth pays advocacy grants under section 81-1 of
the Aged Care Act 1997 to organisations in each state and territory to
provide free, independent and confidential advocacy services to care recipients
in relation to their rights.
In accordance with section 56-4 of the Aged Care Act, an
approved provider of a home care service must establish a complaints resolution
mechanism for the service and use the mechanism to address any complaints made
by or on behalf of a person to whom care is provided through the service. The
approved provider must also advise the person of any other mechanisms that are
available to address complaints, such as aged care advocacy services and the
Aged Care Complaints Scheme, and provide such assistance as the person requires
to use those mechanisms.
A care recipient, or another person on the care recipient's
behalf, can lodge a complaint with the Aged Care Complaints Scheme regarding
any issue relating to an approved provider's responsibilities under the Aged
Care Act, which include responsibilities in relation to security of tenure (see
the Complaints Principles 2011 made under section 96-1 of the Aged Care Act).
If the Complaints Scheme were to find that the loss of a home care recipient's
security of tenure was an unreasonable and disproportionate response to the
actions of the care recipient, the Complaints Scheme could give a direction to
the approved provider requiring the approved provider to take stated actions,
such as restoration of the care recipient's home care place, to comply with the
approved provider's responsibilities. failure by the approved provider to
comply with a direction given by the Complaints Scheme could result in
compliance action under Part 4.4 of the Aged Care Act, including the imposition
of sanctions on the approved provider.
If either the complainant or the approved provider is
dissatisfied with a decision made by the Complaints Scheme, they can apply to
an independent statutory office holder, the Aged Care Commissioner, for
examination of the decision. They may also seek review through the Commonwealth
Ombudsman. Parties to a complaint are advised of these avenues of appeal in
correspondence from the Scheme.
As home care is provided by the approved provider in the care
recipient's own home, the reallocation of a care recipient's home care place would
affect the care recipient's care and services rather than his or her
accommodation. If an approved provider were to endanger the safety, health and
wellbeing of a care recipient by withdrawing home care services peremptorily,
without making an effort to assist the care recipient to make other
arrangements, such a breach of the provider's common law duty of care would
call into question the provider's suitability to be an approved provider of
aged care. Action can be taken under section 10-3 of the Aged Care Act if the
Secretary is satisfied that a provider has ceased to be suitable to provide
aged care.
The framework in which the security of place operates
(paragraph 23.21(e) of the User Rights Principles) balances the rights of care
recipients to health and to an adequate standard of living with the rights of
others, such as care workers. The avenues of appeal, outlined above, allow for
a proportionate consideration and response to a care recipient's failure to
meet his or her responsibilities as set out in the Charter.[2]