The interim report for this inquiry made a number of comments on the aged care regulation frameworks, beyond the regulatory failures that contributed to the substandard quality of clinical care experienced at two wards of the Oakden Older Persons Mental Health Facility (Oakden) in South Australia (SA). As outlined in chapter one, these two wards were classified as aged care facilities, and were therefore regulated by the Commonwealth aged care regulation frameworks.
In its interim report, the Senate Community Affairs Reference Committee (committee) expressed its views on the need for a broader investigation of Australia's regulatory oversight frameworks for the residential aged care facility (RACF) sector:
The evidence presented to this inquiry clearly showed that many of the circumstances that led to the substandard level of care given to residents of Oakden were not unique to that facility. Not only are there similar models of care in other facilities, many of the failures in the quality oversight frameworks are universal, in that they could occur again in relation to any aged care facility, in any location, providing any kind of general or specialised aged care service.
As outlined in chapter one, the committee considers an overarching regulatory failure of aged care to be the lack of appropriate regulation of clinical care standards within RACFs. The committee considers a key cause of this to be the lack of clarity and consistent approach to how 'care' is defined and who should be responsible for different aspects of that care.
Chapter one outlined the key areas of concern relating to regulation that were highlighted in the interim report as: accreditation processes for dementia specialist services, model of care and clinical governance issues, qualifications of auditors, rates of restrictive practices, workforce pressures, quality care data, and the compliance approach lacking capacity to foster open disclosure, industry collaboration and capacity building.
This chapter will explore how clinical standards within RACFs are being regulated in the context of recent reforms, and consider how regulation could be enhanced. The provision of external medical and allied health care, and its integration with aged care regulation, is discussed in chapter four.
Recent regulatory reforms
As outlined in chapter one, there have been a range of reviews and reforms of the RACF sector, including the establishment of a new aged care regulator and enacting of new aged care regulation standards. This next section will provide details on the reforms undertaken thus far to the aged care regulation frameworks, as well as provide details on the totality of recommendations for reform that have been made to date by key external reviews.
New aged care regulator
The two key independent reviews that were held into the incidents of substandard care at Oakden ultimately led to significant aged care regulatory reform, the merger of the functions of the Australian Aged Care Quality Agency (Quality Agency) and the Aged Care Complaints Commission into a single entity, the Aged Care Quality and Safety Commission (Aged Care Commission).
The first review of services at Oakden, released in April 2017, was the Oakden Report – The report of the Oakden Review (Oakden report) by the SA Chief Psychiatrist, Dr Aaron Groves. In addition to findings on the sub-standard services provided at Oakden, the Oakden report also commented on regulatory oversight processes, finding that there were many practices at the facility 'that no accrediting body would ever endorse, if it was aware of its occurrence'.
The second key review was the Australian Government commissioned report, Review of National Aged Care Quality Regulatory Processes (Carnell Paterson review), published in October 2017. This review looked more broadly at the entire aged care regulatory system, and its central recommendation was to merge the two main regulatory agencies into one entity, a recommendation that has since been implemented as of 1 January 2019 with the start of operations of the Aged Care Commission.
As noted in chapter two, the new Aged Care Commissioner, Ms Janet Anderson, has described the revelation of care failures at Oakden as a 'wake-up call' which led to a number of other reforms, such as risk based regulation and unannounced accreditation visits.
However, the view that the Oakden revelations were immediately viewed by regulators and providers as a 'wake-up call' is not reflected in evidence presented to this inquiry at the time. The then regulator told the committee 'do I or do my staff accept responsibility for the abuse or the neglect that occurred at Oakden? I don't. I don't believe that's a fair reckoning. I believe, and the law is very clear under the Aged Care Act, that it's the provider who is responsible'.
This approach of deflecting of responsibility appears prevalent in the aged care sector and reflects issues raised in chapter two, where many RACF providers deflect responsibility for clinical care standards, whether they are being delivered by internal or external health professionals.
Carnell Paterson recommendations
The Carnell Paterson review did not merely recommend centralisation of existing regulatory functions, but also made further recommendations for enhancements to be made to those functions.
Broadly, the key recommendations that directly relate to clinical care standards include (recommendation numbering from Carnell Paterson review retained):
Recommendation 1: Establish an Aged Care Commission board.
This entity should include separate commissioners for care quality, complaints, consumers and a Chief Clinical Advisor.
Recommendation 2: Develop and manage centralised data-sharing to:
Improve information sharing with acute care and mental health sectors.
Contemporise risk indicators.
Require RACFs to report risk incidents as they occur.
Publish provider risk profiles.
Share information on common non-compliance areas.
Recommendation 3: Establish a mandatory National Quality Indicators program.
Develop an algorithm for performance benchmarking.
Pilot additional clinical and consumer experience quality indicators.
Recommendation 6: Enact a serious incident response scheme (SIRS) for aged care.
Recommendation 7: Limit use of restrictive practices.
Restrictive practice used should be least restrictive, last resort and subject to regular review.
Restrictive practice must be reported to the Aged Care Commission.
Accreditation assessments will review the use of antipsychotics.
Antipsychotic medications in RACFs must be approved by the Chief Clinical Advisor.
Recommendation 8: Accreditation visits to be unannounced.
Recommendation 9: Assessment against standards to be consistent and reflective of current expectations.
Strengthen capability of assessment teams.
Clearly define outcome measures.
Work with Australian Commission on Safety and Quality in Healthcare to develop clinical governance frameworks and guidance on clinical care measures.
Review aged care standards every five years.
More regular medication management reviews.
The committee notes the expertise of the authors of the Carnell Paterson review in public administration and regulation, as well as health care quality, patients' rights and the regulation of healthcare professions. The committee further notes the unfettered access the review had to the Department of Health (Department) and regulators, and the in-depth nature of the review report. The committee has used the Carnell Paterson review as a roadmap for its own inquiry into the regulation of clinical care standards.
Senate inquiry to establish Aged Care Commission
As outlined in chapter one, during the legislative process to establish the Aged Care Commission, the Department flagged a second tranche of consultations, which will include discussion of possible enhancements to the functions of the Aged Care Commission.
Some of the enhancements relating to clinical care standards that were raised by submitters and witnesses to the Senate Community Affairs Legislation Committee's Aged Care Quality and Safety Commission Bill 2018 and related Bill inquiry included:
Chief Clinical advisor to have a role in approving antipsychotic medications.
Centralise information on intersections between aged care and health systems.
Work with RACF sector to ensure adequate supply of well-trained staff.
Improve standards of clinical governance including developing model framework.
Undertake expanded sector education activities on regulatory functions.
Recruit more clinically trained assessors.
Changes to the membership of the Aged Care Quality and Safety Advisory Council to include more clinical experts.
Chief Clinical Advisor
The Aged Care Commission includes a new role of Chief Clinical Advisor. During the Senate inquiry into the legislation establishing the Aged Care Commission, this role was seen by submitters and witnesses 'as an important step forward in quality care'.
The functions of the Chief Clinical Advisor were not formally enshrined in the legislation. However, during the course of this inquiry the interim Chief Clinical Advisor provided advice on actions underway to improve clinical care in RACFs. These are discussed throughout this chapter in relevant subject areas.
Retaining the accreditation approach to aged care regulation
Submitters and witnesses raised concerns that in reforms to the regulation of aged care, an opportunity was missed to change the focus of how that regulatory framework interacts with the RACF sector. The overall approach to aged care regulation in Australia is a framework focused on accreditation of minimum standards rather than seeking continuous quality improvement. Submitters and witnesses pointed to the approach of the Australian Commission on Safety and Quality in Health Care (Health Care Commission), which encompasses accreditation elements but is also focused on improving health services and lifting overall care standards of the acute care sector.
Submitters argued that the focus of the Aged Care Commission should change to be more strategically involved in overall quality improvement.
The Australian College of Nursing noted that while compliance to minimum standards is an important part of the accreditation approach, this needs to be complemented by a broader framework that promotes continuous improvement through evidence informed best practice.
The interim report noted that the Carnell Paterson review found that under the accreditation system, services may prepare for accreditation cycles instead of focusing on continuous quality care. HammondCare concurred with this view and submitted that the 'accreditation process has led to a compliance mentality among many residential care providers, who seek to demonstrate that their care meets the standards by following a tick-box approach'.
Bupa commented that the continuous improvement approach could be enhanced and strengthened by the Aged Care Commission 'working with providers and sharing information on non-compliance themes and key learnings' and recommended an amnesty arrangement, where providers can work collaboratively with regulators on rectifying issues. This last recommendation is in line with an 'open disclosure' culture as required under the incoming aged care standards, discussed later in this chapter.
The Brisbane South Primary Health Network (PHN) outlined that the shift in regulation approach needs to be similarly done at a provider level, and told the committee:
Moving from a compliance mindset to a continuous quality improvement approach is a key workplace cultural enabler. This requires leadership and a commitment to creating a workplace culture free from fear and potential retribution for staff, visitors, consumers and their carers and families.
This issue was not only raised in this inquiry, but was also raised by submitters to the legislation inquiry reviewing the bill to establish the Aged Care Commission. The Australian Medical Association (AMA) submitted recommendations to that legislation inquiry to enhance the powers of the Commission to improve aged care services, including oversight of aged care workforce issues as well as being a centralised clearing house of aged care and health information.
Queensland Nurses and Midwives' Union (QNMU) submitted to the legislation inquiry that the purpose of the Aged Care Commission should go beyond centralising existing oversight functions, and should take a proactive role with the Health Care Commission to ensure consistent clinical and health care standards across all sectors, assume the functions of the Aged Care Financing Authority, act as a data clearing house for the aged care sector, and incorporate a research capacity.
As outlined in discussion later in this chapter on clinical governance and restrictive practice, the Aged Care Commission appears to be making a shift in its approach to take a leadership role to guide the RACF sector to quality improvements rather than simply seeking to regulate by compliance to minimum acceptable standards of care.
Aged Care Workforce Strategy Taskforce
Another significant aged care study was undertaken soon after the Oakden revelations. The Minister for Older Australians and Aged Care (Minister) established the Aged Care Workforce Strategy Taskforce (Aged Care Taskforce) on 1 November 2017, to 'develop a strategy for growing and sustaining the workforce providing aged care services and support for older people, to meet their care needs in a variety of settings across Australia.
The Aged Care Taskforce released its workforce strategy report in September 2018, which identified 14 strategic actions to address current and future workforce challenges, including skill mix modelling, clinical governance, strengthening the interface to primary health and acute care, a voluntary industry code of practice and care worker accreditation.
Issues raised in the workforce strategy that are relevant to clinical care standards and regulation include:
Voluntary industry code of practice: including board governance, best-practice sharing, workforce education and planning and continuous quality improvements.
Qualification and skills framework: boost workforce competencies particularly for personal care workers, expand the nursing scope of practice, address emerging roles such as coordinating care, standardisation of education requirements, clearly defined competencies for each level of worker and requirements for continuing professional development.
Workforce planning and skill mix modelling: reaching an industry standard based on consumer needs, individual care plans that are regularly reviewed, industry developed guidance for development of holistic care plans, establishment of a committee responsible for care compliance chaired by a director with appropriate clinical care experience, organisations publish the model of care and hours of care.
Strengthening the interface between aged care and primary health and acute care: ministerial level dialogue across governments to improve funding and service design to improve access to quality primary health and acute care services, and RACF providers update workforce planning to make more effective use of combinations of functional health and clinical care providers.
Establish an Aged Care Centre for Growth and Translational Research: research to improve workforce capability, care quality and effectiveness, develop a minimum data set to provide an objective benchmark for care outcomes, evidence-based models of care and providing a single industry voice on funding priorities.
Transitioning the industry and workforce to new standards: establish an Aged Services Industry Council to bring the peak bodies together to enable strategic leadership across the industry.
As with the Carnell Paterson review, the committee notes the expertise of the Aged Care Taskforce in business, education, training and skills development, medical administration and clinical service delivery. The committee notes the far-reaching nature of the Aged Care Taskforce's review and the extensive set of recommendations that look at workforce planning issues in a holistic manner. As with the Carnell Paterson review, the committee has used the work of these experts as a guide to strategically focus its own inquiry into the regulation of clinical care standards in aged care service delivery.
Charter of Aged Care Rights
Another part of the aged care quality framework designed to place the RACF resident—and all aged care recipients—at the centre of the process is consolidation of the separate rights charters for residential aged care, home care and short term restorative care into one charter to be known as the Charter of Aged Care Rights.
Both the existing charters and the new consolidated Charter of Aged Care Rights articulate the rights that RACF residents can expect to enjoy, including safe and high quality services, rights to be respected and informed about their care, to have autonomy and independence and the ability to make complaints without fear.
In the consolidated Charter of Aged Care Rights, which will take effect from 1 July 2019, the rights are expressed in a more minimal simplified style. Aged and Disability Advocates Australia raised concerns this may make it harder to secure residents' rights as the new rights are more nebulous and are 'open to interpretation' and warned that the new Charter of Aged Care Rights could be a step backwards:
The generic nature of Draft Charter leaves many important principles open to interpretation. ADA Australia is concerned that aged care rights are being weakened, at a time when they should be strengthened.
Under the new charter, the RACF will be required to provide a signed copy of the Charter of Aged Care Rights to each existing and new resident to make them aware of their rights. However, it is questionable whether this will have the desired affect given the vulnerability of many people living in RACFs.
New aged care regulation standards
The Single Aged Care Quality Framework (Single quality framework) will come into effect on 1 July 2019 and will become the set of standards by which RACF services are regulated. Until then the current Accreditation Standards will continue to be the standards by which RACFs are assessed and accredited.
The Aged Care Commission outlined the different approach to accreditation that the Single quality framework heralded:
It is actually looking at care through the lens of the care recipient and their family...whatever their level of need—the new standards require that those needs be addressed for that individual, respecting that individual's dignity and giving them the capacity for choice as far as possible, and looking after their clinical care, their personal care, their psychosocial wellbeing, their built environment and all other aspects of the complexity which goes to providing care for them.
The Aged Care Commission told the committee they have been working with the RACF sector to ensure the sector is fully aware of the new standards and the expectations around those standards.
Generally, submitters and witnesses expressed support for the new standards' focus on person-centred care. The Aged Care Guild noted the new Single quality framework will embed a major shift in aged care, with a focus on the consumer and outcomes for the consumer that will be 'very beneficial to not only the community but the sector overall'.
Dementia Australia told the committee that the new standards place consumers at the centre of the quality process and are a vast improvement on the existing standards.
The committee strongly concurs with the guiding principle of the Single quality framework to move to person-centred care, and is pleased that RACF providers, clinical organisations and residents' advocacy organisations are supportive of this change.
The committee is of the view that the change to person-centred care—which takes a more holistic view of the needs of the person—must be met with a corresponding change to person-centred regulation, where assessments of care standards are not limited by jurisdictional barriers, but look holistically at the care needs of RACF residents with a 'no wrong door' approach to issues of concern.
The committee is concerned that the new Charter of Aged Care Rights may be too brief, may not meet the needs of RACF residents and may leave their rights to be interpreted by the RACF. The committee considers that this is not desirable and that the Department may need to work with providers, advocates and RACF residents to ensure that the rights are imbued with appropriate content and that RACF residents' rights are strengthened.
Concerns with new standards
Submitters and witnesses have made a number of observations around the new standards and whether they improve the regulation of clinical care. These observations are contained in the following discussion of individual aspects of clinical care regulation.
QNMU submitted that the standards do not reflect the significant health care component in aged care and recommend that the Health Care Commission standards and national safety and quality indicators for primary health care, currently under development, should be adopted in the aged care context when completed.
The Health Care Commission told the committee that it was consulted on the Single quality framework, and it felt that where the risks remain is in medication management and the transition of care.
Model of care
As outlined in chapter two, a model of care encompasses all aspects of how a health or care service is delivered, including identifying what need this service is intended to address, governance and management structures, how it integrates with other services, resource allocation such as staffing levels and profiles and evaluation of outcomes.
The SA Chief Psychiatrist noted that a lack of an endorsed model of care was a significant factor in the decline of services at Oakden.
As a result of no endorsed system wide Model for [Older Persons Mental Health Services] there has been understandably, little done to define a Model that is specific for Oakden. This has led to a resultant further decline in services at Oakden Campus, which remains unclear what its purpose is.
Chapter two contained discussions on the detrimental impact to clinical care standards when there is no appropriate model of care in place. Beyond critiquing the lack of an industry standard model of care, submitters and witnesses made suggestions about how this could be improved, and what such a model of care should contain.
The Australian College of Nursing summarised the critical need for greater focus on the regulation of clinical care in RACFs and told the committee that:
...there has been a decreasing focus on healthcare aspects of aged care, while the care needs of aged-care recipients are increasing in both acuity and complexity. Compounding this situation, there has been a shift towards an increasingly deskilled and unlicensed aged-care workforce and also a shift to a social model of aged care which has de-emphasised the healthcare aspects of care at a time when the healthcare needs of residents have never been greater.
QNMU made similar comments, referring to the model of care as one that has de-emphasised the clinical aspects of residential aged care.
Dementia Australia told the committee that people living with dementia want a stronger dementia specific model of care with clearly defined roles and responsibilities, and furthermore there should be clear definitions of what comprises, personal, clinical or medical care. Dementia Australia pointed to the new Specialist Dementia Care Program as proof that it is possible to develop a clear program scope and clinical principles with a staffing model that reflects the resident profile.
Flinders University recommended that explicit standards of care should be established, that 'describe all aspects of care including nursing, medical, allied health, hospitality, cleaning and security services'. Flinders University went on to state that clear descriptions of standards of care will lessen the reality-expectation gap and ensure complaints are more relevant to those enforceable care standards.
South Western Sydney PHN also critiqued the Single quality framework which combines medical and personal care and is written flexibly, which is only appropriate for personal care, creating a standard for medical care which is vague and open to interpretation.
The Australian College of Nursing emphasised that a model of care should include a clinical services capability framework embedded in each RACF, which must include defining the scope of practice for the workforce. South Western Sydney PHN agreed with this view and told the committee it supports 'a robust quality assessment which clearly demarcates clinical and personal care'.
The New South Wales (NSW) Agency for Clinical Innovation (ACI) has developed extensive guidance material on planning for and developing a model of care, which outlines that developing a model of care starts with answering definitional questions, which in essence are: what is the problem and what is the root cause of the problem? ACI further outlines that the guiding principles of a model of care are that it:
has localised flexibility and considers equity of access
supports efficient utilisation of resources
supports safe, quality care for patients
has a robust and standardised set of outcome measures and evaluation processes
is innovative and considers new ways of organising and delivering care
sets the vision for services in the future.
ACI further states that a model of care should be 'developed in collaboration with clinicians, managers, health care partners, the community, and with patients, their carers, and or organisations that represent them'.
The Aged Care Taskforce made recommendations on developing a model of care, although it referred more obliquely to a 'voluntary industry code of practice' that will 'enable the industry to define its consumer promise, standards, workforce practices and commitment to quality and safety' and would include 'integrated models of care'. The code would incorporate elements of board governance, best-practice sharing, workforce education and planning and continuous quality improvements.
The NSW Nurses and Midwives' Association commented that voluntary codes of practice was a form of industry self-regulation, which 'seems counter-productive...when the sector has failed to prevent situations such as Oakden in SA, and given the level of sanctions currently imposed'.
The Aged Care Commission presented evidence that clinical governance is an issue that is covered in both existing and incoming aged care standards:
Under the current standards and indeed under the new standards to be introduced from 1 July, there are clear references to an expectation that providers will have in place clinical governance frameworks which ensure that, where clinical care is provided in the home, it is subject to protocols and policies and a clear understanding about the way things must be done.
However, chapter two outlined that this element is lacking across the board in the RACF sector, despite the critical importance of a clinical governance framework in ensuring appropriate standards of clinical care and the existing accreditation requirements outlined above.
South Western Sydney PHN submitted that the clinical governance requirements in the Single quality framework are too narrow as they are 'limited to microbial stewardship, minimising use of restraints and open disclosure. The requirements of clinical governance for a vulnerable group are quite significant, particularly given care is complex and provided by multiple external providers'.
Dementia Australia recommended looking to other clinical governance frameworks, such as those under the National Safety and Quality Health Service Standards.
The Aged Care Taskforce looked at this issue in relation to workforce planning and recommended that 'all organisations establish an integrated care and clinical governance committee (or equivalent) to review holistic care plans and ensure they are being delivered, regularly updated and communicated with individuals and families'.
The Health Care Commission noted that there is no model framework for clinical governance in the aged care sector, which was highlighted in the Carnell Paterson review. The Health Care Commission told the committee that it has been working with the Aged Care Commission and the Department on developing one for the RACF sector, using its experience and knowledge of the clinical governance frameworks of the health sector that it oversees.
On first glance, evidence to the committee regarding staff to resident ratios was one where there appeared to be two very distinct and opposing views on using staff to patient ratios as a mechanism to improve clinical care outcomes. On deeper investigation, there appears to be some consensus on a way forward.
The NSW Nurses and Midwives' Union told the committee it believes the regulation framework 'has failed to draw parallels between the value of safe staffing ratios and skill mix, and quality-of-care outcomes' and with the reform of accreditation standards 'there have been no clear benchmarks set in relation to what good, safe staffing looks like for assessors to make compliance judgements'.
The Aged Care Commission submitted that it 'collects information about staffing in a service to assess whether there are sufficient qualified staff to plan for and deliver care'. However it did not provide any information on how, in the absence of any benchmarks, it determines whether the staff numbers are 'sufficient'.
QNMU submitted that appropriate staffing levels are included in the new Single quality framework, but the requirements are vague and there is little evidence to show it is consistently assessed as part of the accreditation process. Additionally, the Department does not appear to have developed an aged care staffing and skill mix benchmark to assist the assessors to determine what is an appropriate level of staffing. QNMU further submitted that there is little evidence that RACF providers have attempted to implement evidence based staffing and skill mix methodologies to meet the care needs of consumers.
The Australian College of Nursing described situations where an agency Registered Nurse (RN) may be the only evening nurse in a facility with over 200 residents and how that impacts on the safety of practice:
If somebody falls, you've got to leave the higher acuity area to be able to support and wait for an ambulance, so you're constantly compromised in some areas like that.
The Australian College of Nursing went on to recommend at minimum there should be pre-established nursing hours per resident per day and a mandate on one RN on site, although this should take into account the difficulties faced by rural RACFs in finding enough RNs, particularly for night duty.
The NSW Nurses and Midwives' Association submitted that it is in the public interest for the government to take an active role in determining safe staffing levels, as it undertook in the staffing of childcare, and suggested that leaving this to RACF providers may not be the most protective response. The NSW Nurses and Midwives' Association further noted that the Senate inquiry into the Future of Australia's aged care sector workforce made similar recommendations on the planning of a minimum nursing requirement.
The AMA put the issue very succinctly by submitting:
Adequate staffing ratios alone might not ensure quality in all aspects, but inadequate staffing certainly prevents it'.
Moving forward: ratios or care hours?
RACF provider groups submitted that there is no research which establishes an evidence based link between increased nurse-to-patient ratios in aged care and better patient outcomes.
Leading Age Services Australia submitted that there has been little Australian research into the effect that staffing levels and skills have on residents' outcomes, and international studies do not deliver a clear message. Leading Age Services Australia submitted a 'tentative conclusion that may be drawn from available research evidence is that a higher ratio of direct care staff to residents tends to result in improved resident outcomes'.
Leading Age Services Australia recommended that rigid staffing ratios may not be the best way to allocate scarce funding, and local factors such as care needs of residents, experience and quality of staff and floorplans may mean some RACFs need less staff.
The Aged Care Guild cited the Productivity Commission's 2011 report, Caring for Older Australians and submitted that this report 'outlined the inherent drawbacks and difficulties of mandated staffing ratios'. The Aged Care Guild went on to say that an individual model of care developed by the RACF provider that is adaptive to the needs of residents was more appropriate, and cited the Bupa Model of Care as an 'innovative model' which is 'designed to promote early intervention and treatment of conditions, and reduce unplanned transfers from aged care homes to the hospital'.
However, as outlined in chapter two, this model of care promoted by the Aged Care Guild as an better alternative to staffing ratios has led to Bupa having nine RACFs sanctioned within a 12 month period for failing to meet compliance standards, with some identified as a 'severe risk to the health, safety and wellbeing of care recipients'.
Aged and Community Services Australia cited two studies, both of which found that using a simple staff to resident ratio would not necessarily deliver higher quality of care, and that other factors such as quality of staff should be taken into account as well. Aged and Community Services Australia submitted it is 'supportive of a staffing ratio metric that is based on 'acuity' or 'casemix' and that is part of a suite of quality indicators that is developed in conjunction with industry'.
The Brisbane South PHN agreed that staff-to-patient ratios should be based on clinical requirements and level of resident ability and needs, but went beyond RN to Assistant in Nursing (AIN) ratios and recommended this should also take into account allied health and visiting medical officers.
Allied Health Professions Australia also cautioned against hard quotas for individual professions as that approach may leave little money left over for other professions, and recommended any approach be centred on patient needs.
In contrast to studies cited by RACF providers, nursing organisations cited studies which showed there is an evidence based link between care outcomes and nurse to patient ratios.
Two studies cited by nursing organisations showed that enhanced nursing levels have been found to reduce unnecessary hospitalisations in RACF residents with dementia and that high fall rates were associated with fewer nursing hours per resident per day and a lower percentage of RNs. This last study is relevant to the Monash University study cited in chapter two, which outlined that 15 per cent of all RACF resident deaths are from preventable causes, of which 81.5 per cent are from falls.
Nursing organisations cited a 2016 study by Flinders University and the Australian Nursing and Midwifery Federation which developed an evidence based staffing and skill mix model following research on the acuity of RACF residents, missed care and mapping residents' needs to develop a picture of safe staffing levels. The model did not specify a ratio, but instead called for a skill mix and minimum nursing hours based on residents' care needs. The Australian College of Nursing pointed out that this staffing model would need to be considered in context of funding and financing it.
QNMU told the committee that arguments positioning the nursing organisations as seeking a hard ratio of nurses to patients was misrepresenting their recommendations for an evidence-based skill mix:
It [the research] didn't argue for a particular ratio. It asked for a skill mix and a number of hours per resident per day, which is, of course, based on the needs of those residents. If you have the appropriate nursing hours implemented and you have the appropriate skill mix, the ratio takes care of itself. It doesn't have to be a fixed number.
The Aged Care Commission submitted that if there was an 'unambiguously positive correlation' between staff ratios and improvement in care quality, then it would 'merit serious consideration'.
Both sides of the debate cited the Aged Care Taskforce report, A matter of care. Aged and Community Services Australia cited this report as stating '[s]tatic models or set staffing ratios will not...necessarily result in better quality of care outcomes'. The NSW Nurses and Midwives' Union cited the same report as highlighting the lack of skill across the RACF sector at calculating staffing and staff models.
What is important to note is that in relation to staffing levels, the Aged Care taskforce developed a significantly more nuanced response to the idea of staffing levels than the Aged Care Commission and stated 'the taskforce considers the industry needs to move to a standard approach to workforce planning'.
Nursing organisations submitted that, as well as impacting care outcomes, staffing levels also impact other obligations of RACF providers outlined in Accreditation Standards, such as ensuring that staff are able to meet their professional obligations. The professional obligations of staff include RNs working within the nursing scope of practice which requires Enrolled Nurses (ENs) and AINs to work under the direction and supervision of a RN. Furthermore the nursing scope of practice requires the RN to assess any work delegated by them to an EN or AIN. The lack of a RN on site 24/7 may breach this requirement.
QNMU pointed out that to encourage or direct a RN to engage in unprofessional conduct, such as a RN being unable to comply with their statutory duty or a professional standard is an offence the Health Practitioner Regulation National Law Act 2009 and carries substantial penalties. QNMU further submitted that accreditation standards has gone backwards in this regard, as the previous requirement to have 'systems in place' to ensure compliance with professional standards is absent from the Single quality framework and has been relegated to guidance material.
When asked about the obligations of RACF providers to ensure staff can maintain compliance with professional standards, the Aged Care Commission quoted the existing Accreditation Standards but did not discuss the soon to be implemented Single quality framework.
Chapter two outlined that medications management was the highest area of complaint to the Aged Care Complaints Commissioner, showing that this is an area of significant concern in regulation.
The Carnell Paterson review made comment on how the regulation of medications management could be improved, and in particular recommended that the aged care regulators look to how this issue is managed in the health care sector. The National Safety and Quality Health Service Standards (NSQHS Standards), the standards by which the acute care sector is regulated, include guidance on suggested key tasks, strategies and resources that health service organisations can use to implement the NSQHS Standards. In the aged care context, there are similar guidelines and best-practice materials available, including for medications management. The Carnell Paterson review recommended that assessment of RACFs should include an expectation that consistent implementation of such guidance is necessary for providers to meet the Accreditation Standards.
Chapter two contained discussions around the practice of AINs providing assistance to RACF residents to take their medications, and raised questions around whether this practice extended to residents who may be cognitively impaired, which in some jurisdictions would be a breach of local legislation.
In responding to written questions from the committee asking if assessors review whether medications are being dispensed in compliance with state and territory laws on cognitive impairment, the Aged Care Commission submitted that its role is to assess whether Accreditation Standards are met, which includes whether the RACF provides frameworks to support staff and consumers in using medicines safely and avoid medication errors. By omission, this appears to confirm that the Aged Care Commission does not play a role in reviewing whether AINs are dispensing medications in accordance with the relevant jurisdiction's laws.
Chapter two also contained extensive discussions around medications safety, including the lack of medications review to combat unsafe drug interactions due to polypharmacy, the over-use of psychotropic medications as chemical restraint, and the inappropriate dispensing of pro re nata (as needed) medications, which in different environments can be given either too often, or too irregularly.
In responding to written questions from the committee on whether assessors review the type of psychotropic medication residents are prescribed—as the type of psychotropic can be an indicator of inappropriate prescribing for the purpose of chemical restraint—the Aged Care Commission responded that '[a]ccountability for prescription of all forms of medication rests with the prescribing medical practitioner'. The Aged Care Commission further submitted that under the incoming Single quality framework 'services will be required to ensure that each consumer receives safe and effective clinical care that is best practice, tailored to their needs, and optimises their health and wellbeing' and where there is available guidance on best practice 'services will be expected to use this to inform their approach to care'.
However, the Aged Care Commission did not indicate how assessors will review whether those available best practice guidelines are being used to deliver real-world best practice. In other words, assessors review the processes put in place by RACFs, but do not review whether those processes result in medications management for individual residents that is safe and appropriate to their needs.
The South Western Sydney PHN submitted that it is concerned by the omission of a palliative approach in the Single quality framework, and noted that the new standards define end-of-life care to be limited to the terminal phase of life (i.e. the hours or days or occasionally weeks when death is imminent). Other accepted guidelines define end-of-life as the last 12 months of life and include people who are living with advanced, progressive and incurable conditions, which would include dementia and people with frailty combined with co-existing conditions.
The new Single quality framework provides limited guidance about the palliative care standards that can be expected from a provider. Palliative care is only referred to in Standard 2 where it notes that the organisation needs to be able to demonstrate that it offers 'end of life planning if the consumer wishes' and in Standard 3(c) which relevantly provides that the 'needs, goals and preferences of consumers nearing the end of their life are recognised and addressed, their comfort maximised and their dignity preserved'.
The Australian College of Nursing considers that this is insufficient because the standards do not encompass the whole of palliative care. The Australian College of Nursing submitted that a consistent framework was necessary to ensure that patients and their family members receive a consistent standard of service:
It is the frailty and co-morbidities frequently found in aged care that make palliative care including end-of-life support so critical. There is concern that without an underpinning framework with which to hold providers more accountable, there will continue to be unacceptable inconsistency in palliative care delivery and make it harder for residents/consumers, and their families, carers and representatives, to understand what they can expect from their service provider.
Instead the Australian College of Nursing advocated for 'clear and measurable standards that are specifically applicable to residential aged care'.
Recommendations to improve palliative care and advance care planning were made by the National Health and Hospitals Reform Commission in its 2009 report A healthier future for all Australians. This report recommended sweeping changes to how health care is delivered in RACFs and specific to palliative care, recommended that RACF providers be required to have staff trained in supporting people to complete advanced care plans, and recommended governments strengthen access to specialist palliative care services with a special emphasis on RACF residents.
Wellness and reablement
Where palliative care seeks to comfortably manage a person's end-of-life care, wellness and reablement focuses on increasing and maintaining a RACF residents' quality of life for as long as possible. Some submitters and witnesses raised concerns that the concepts of wellness or reablement were not adequately represented in the new or existing standards.
Dementia Australia recommended changing how the sector thinks of a home-like environment and instead advocated thinking of an enabling environment. Royal Australian and New Zealand College of Psychiatrists (RANZCP) made similar observations and pointed to the funding system which is focused on how disabled a person is, which does not provide any incentive for reablement.
The new accreditation standards require the organisation to 'optimise health and well-being'. The Aged Care Guild suggested that this may infer a focus on rehabilitation and reablement. If this is the case, the Aged Care Guild indicated that it would be supportive of this aim, but it considered that the current ACFI would need to be adjusted to align incentives towards rehabilitation.
The Australian College of Nurse Practitioners recommended that assessors could review the mobility of residents on admission to identify how long before mobility is lost, as it is common to see residents put into recliner chairs or wheelchairs because it is quicker for staff.
A similar approach could be adopted with patients with mental health and cognitive issues. Dementia Australia noted that restorative and rehabilitative practices have been associated with improved mood and behaviour in people with cognitive impairments. Dementia Australia noted that this is possible when there is a clear allocation of responsibility for older people who have cognitive impairments. Dementia Australia further noted examples of the Psychogeriatric Nursing Homes in Victoria and the Psychogeriatric Care Units in Western Australia where there is an explicit focus on behavioural assessment and rehabilitation.
Dementia care, mental health and restrictive practice
As outlined in chapter two, dementia accounts for a large part of the clinical care requirements in RACFs, as over half of all residents have a diagnosis of dementia. Chapter two also outlined the very high rates of restrictive practice being used in RACFs, predominantly in the form of the overuse of psychotropic medications as a form of chemical restraint.
Dementia Australia told the committee that the aged care regulation system does not appropriately place dementia care at the core of RACF services, and that it is imperative to 'make that happen in a consistent, transparent and accountable way'.
RANZCP told the committee the new Single quality framework emphasises 'the need for facilities to evidence that they use best practice in the management of behavioural disturbances and dementia', which would require a comprehensive set of interventions as a first line before any restrictive practice is implemented. However RANZCP later pointed out that the relatives of the person with dementia won't necessarily know what best practice is, in order to be able to advocate for care quality.
In relation to regulating the use of restrictive practice in the RACF sector, the Health Care Commission advised the level of regulation should be the same as in the health sector, particularly noting the increased expertise in the health sector to deal with issues that may lead to restrictive practice. The Older Persons Advocacy Network recommended that restrictive practice oversight should mirror that used in the child protection system. The House of Representatives Standing Committee on Health, Aged Care and Sport's 2018 inquiry into the quality of care in RACFs (House of Representatives Committee inquiry) also recommended new legislation to regulate restrictive practices.
The Aged Care Commission told the committee that guidance on the use of restrictive practice, like any other clinically oriented practice, is expected to be outlined in the clinical governance frameworks that each RACF is expected to have in place. The Aged Care Commission further told the committee it has inserted new screening questions for restrictive practice:
We have now inserted two specific screening questions, one in relation to the use of psychotropic medication, 'As a proportion of all residents, how many residents are currently using psychotropic medication?' and the second in relation to physical restraint, 'The number of residents subject to physical restraint as a proportion of total residents?' These are just high-level indicators which will subtly or more significantly influence where and what the quality assessor looks at in the course of their visit.
However the Aged Care Commission did not provide any information on benchmarks it uses to determine what percentage of people in an RACF being prescribed psychotropic medications would indicate potential overuse by the facility.
The Department told the committee that the Minister requested the Chief Medical Officer for the Department to convene an expert advisory group of medical, pharmacy, nursing and other clinicians to look at issues around chemical restraint, particularly workforce culture issues, and make any further regulatory recommendations to the Minister for consideration.
As outlined in chapter two, on 30 March 2019 the Minister made an announcement that he intends to make changes in relation to physical and chemical restraint which will apply from 1 July 2019.
The announced changes include:
For physical restraint a provider must have informed consent of consumer or representative, except in an emergency. No such requirement for chemical restraint was flagged.
For physical restraint, a health practitioner must assess the person before any physical restraint can be used.
For chemical restraint, the prescribing practitioner must assess the person before chemical restraint can be used.
Box 3.1: Restrictive practice in the disability sector
The introduction of the National Disability Insurance Scheme (NDIS) Quality and Safety Commission (NDIS Commission) has seen a focus on person-centred behaviour strategies which seek to 'address the underlying causes of behaviours of concern, or challenging behaviours, while safeguarding the dignity and quality of life of people with disability who require specialist behaviour support'.
Following the endorsement of the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector by state and territory governments in 2014, the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 were developed to reduce the use of restrictive practice in the disability sector.
Under the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018, restrictive practice includes seclusion, chemical restraint, mechanical restraint, physical restraint and environmental restraint.
Registered providers who provide behaviour support to NDIS participants must comply with the NDIS Quality and Safeguarding Framework and any state or territory laws which regulate and authorise the use of restrictive practice.
In instances where an NDIS participant exhibits behaviour of concern, which puts themselves or others at risk of harm, and the use of restrictive practice is considered warranted, a registered provider must develop a behaviour support plan for the participant in consultation with the participant, their family (or carer or guardian) and the service providers who will implement the plan.
Behaviour support plans must be:
developed by a specialist behaviour support practitioner;
specify a range of evidence-based and person-centred strategies that focus on the needs of the individual;
contain strategies to reduce or eliminate the use of restrictive practice; and
lodged with the NDIS Commission.
Where restrictive practice is used, 'it must be the least restrictive response possible in the circumstances, reduce the risk of harm to the person or others, and be used for the shortest possible time to ensure the safety of the person or others'.
Registered NDIS providers who use restrictive practice must report monthly to the NDIS Commission on its use and report any unplanned or unapproved use of restrictive practice.
The committee acknowledges the extensive evidence from clinicians that a model of care and a clinical governance framework are vital to delivering safe and effective clinical services.
The committee does not intend to provide targeted comments on what specific elements are missing from the RACF model of care and what could be done to improve it, when it is clearly evident to the committee that there simply is no industry-standard model of care at all.
The committee is highly concerned with the lack of appropriate clinical governance frameworks in operation across the RACF sector, particularly in light of the evidence which shows that it is a requirement of the existing Accreditation Standards. The committee is further troubled by evidence that these requirements for clinical governance are watered down in the incoming Single quality framework.
In relation to staffing levels, the committee concurs with the views of the AMA that inadequate staffing prevents quality care. The committee further notes that without a RN on duty, medications may not always be available, nor can delegated care be monitored in a timely fashion. While this may not be necessary in all RACF service contexts, it does apply to many.
The committee is highly concerned with the oversight of medications in RACFs. There appears to be no external oversight mechanism to ensure that medications in RACFs are being managed safely, are prescribed appropriately, and are administered according to relevant laws.
The committee acknowledges the announcement from the Minister on soon to be released limitations on restrictive practice in RACFs.
The committee is of the view that oversight of restrictive practice in the aged care context cannot be any less than the oversight in any other care context, such as that used in the health or disability care context. To do so would be clearly stating that older vulnerable Australians are less deserving of protection than other groups.
Without wishing to pre-empt the advice of expert clinicians tasked with reviewing the use of chemical restraint in aged care, the committee is firmly of the view that the existing frameworks for regulating the use of restrictive practice should be extended to other service delivery contexts, wherever it is used, in this case the aged care context.
Aged Care Commission Assessors
The Aged Care Commission outlined that its approach to accreditation assessments is to seek evidence that each RACF has appropriately addressed the requirements of the Single quality framework:
[A] fundamental expectation that we as regulators have of providers is that they have the systems and processes in place to ensure that the care that's delivered, including the clinical care, is overseen, is fit for purpose and is regulated within the home before we even come to look at it.
In addition to concerns raised with the standards contained in the Single quality framework, discussed above, submitters and witnesses raised issues relating to how accreditation assessments are conducted.
Many witnesses and submitters recommended that Aged Care Commission Assessors (assessors) should have clinical knowledge and, or background. This issue was raised by both RACF providers groups as well as medical bodies. Leading Age Services Australia summed it up neatly and told the committee '[w]hen it comes to the lack of expertise, it's really that a clinician needs to judge the clinical performance of a facility'.
RANZCP agree that assessors with a clinical background would be able to observe the way that staff interact with residents and 'you'd get far more information about the appropriateness of care by doing that than you would by reviewing the tick-and-flick tickbox situation that currently exists'.
The Brisbane North PHN recommended assessors have a clinical background as this also brings a focus on quality of life and wellness to balance the clinical needs of a resident.
Allied Health Professions Australia pointed out that only assessors from a clinical background would have a capacity to assess whether the appropriate clinical governance principals are being applied.
Leading Age Services Australia discussed the inconsistent interpretation of quality standards, citing 'concern that some auditors may lack the expertise required for this important role' and pointed to a survey which showed over 20 per cent of respondents 'were either dissatisfied or unsure about the assessment teams' depth of knowledge and understanding of aged care or, indeed, the application of standards'. Leading Age Services did point out that the identified issues would be resolved through improved training and continued professional development. Bupa echoed these concerns around inconsistency of assessors' approaches.
The Aged Care Commission told the committee that some of their strongest assessors do not have a clinical background but may have performed in another regulatory environment, and that all staff have access to timely clinical advice. The Aged Care Commission further outlined the recruitment and training of assessors, which included:
Assessors are recruited to ensure an overall diverse skill background.
Assessors undertake an exam and training on entering the service, which is 'rigorous' and 'not everyone gets through'.
Assessors have guided continuing professional development obligations.
There is a conflict of interest protocol regarding associations with the sector.
Witnesses also raised concerns that 'some members have also observed examples of behaviours of some auditors perceived to be punitive or aggressive in their engagement with providers' staff'.
The Aged Care Commissioner responded to these allegations by stating 'if they weren't just a little bit uneasy about the work of my assessors, I might be uneasy'.
Leading Age Services Australia noted to the committee that the A matter of care report by the Aged Care Taskforce recommended that building capability and competence in the aged care workforce was necessary, but equally necessary was the same workforce improvements on the regulator side.
QNMU made a similar comment on building capacity and recommended the Aged Care Commission work more closely with accreditors in the hospital sector to develop a similarly effective accreditation process in the aged care sector.
The Carnell Paterson review stated:
Intelligence gathering and effective data management is critical to ensure that the regulatory system is responsive, both to support the mitigation of risk and to rapidly detect and address poor-quality care...
We consider that this comprehensive vision of data management is currently missing in aged care quality regulation in Australia.
The Carnell Paterson review made extensive comment on the need for better data collection and publication for the benefit of regulators, RACF providers, clinicians and for residents and their families.
The NSW Nurses and Midwives' Association submitted that there are no current clinical benchmarks that span the public, not-for-profit and private aged care sector, and noted that the collection of data should be used by the Aged Care Commission to inform judgments about compliance.
The Royal Australian College of General Practitioners recommended aggregate measures of quality be established and be made available for RACFs to compare against, not done 'in a punitive way...but there should be feedback to individual facilities about how they sit compared to other facilities in that sort of group'.
Bupa made a similar recommendation, that the regulator provide the sector with information on non-compliance themes, so the sector can work together to improve.
Bupa further noted that data collection and sharing is important for continuous quality improvement across the sector, but this is hampered by reporting systems that vary greatly across the sector so data cannot be compared like-for-like. An industry-wide move to a digital environment would assist in collaboration and data sharing.
The Aged Care Taskforce made recommendations on data that went beyond improving the way data is collected and published. The Aged Care Taskforce recommended the establishment of the Aged Care Centre for Growth and Translational Research to formalise collaboration between all aged care input stakeholders to support aged care workforce related research. This would include:
a minimum data set which will provide an objective benchmark for care outcomes and assessment of the impact of interventions
evidence-based models of care, guidelines and assistive technologies to improve workforce productivity and care quality.
Quality indicator program
The Department operates the National Aged Care Quality Indicator Program for the RACF sector, which is a voluntary program that collects data on pressure injuries, use of physical restraint and unplanned weight loss.
The 2018 House of Representatives Committee inquiry into RACFs recommended the program be made mandatory with an expansion of the data captured, to be determined with the involvement of the aged care sector and consumer groups.
The Australian College of Nursing recommended that additional indicators that should be included are restraint prevalence, falls, nursing hours per resident per day, pressure injury and preventable infection rates and nursing skills and skill mix of the workplace, which would draw Australia more in line with international standards such as the National Database of Nursing Quality Indicators.
The Department told the committee the program would now be made mandatory and the indicators would be expanded to include data on medication management and falls. This is in line with recommendations of the Carnell Paterson review, which stated that '[u]nlike some other countries, Australia does not have a mature quality indicator system'.
Mortality audits, or death reviews, were cited by submitters and witnesses as 'a really important way of looking at the service you provided and ensuring that it met the patient's needs, and it forms a part of the clinical governance structure and it feeds information back that we can learn from'. The Health Care Commission confirmed that these were not currently conducted in the RACF environment in the same regular way it occurs in the health sector.
The Chief Medical Officer for the Department confirmed that a mortality index can be useful to provide indicators on clinical care, but would need to reviewed carefully due to the care environment of RACFs. The Chief Medical Officer also told the committee that unexpected deaths, or those arising from poor quality care, are supposed to be reported to the relevant coroner, but this can be hampered by death certificates which may not always be accurately completed.
The interim Chief Clinical Advisor for the Aged Care Commission outlined that mortality audits in the aged care context can be complex due to lag factors, such as where a fall led to a decline in health that ultimately resulted in a death, however data does provide opportunities to improve care and eliminate or reduce clinical variance.
The Health Care Commission told the committee that the Department has asked it to provide advice on morbidity and mortality audits used in the health care context that could be applied in the RACF sector.
As outlined in chapter two, Monash University has undertaken extensive research into the area of preventable deaths in RACFs. While this research was hampered by a lack of quality data from the aged care sector and relied on coronial reports, it has resulted in a number of recommendations to reduce rates of preventable injury and death in RACFs. These recommendations could have been improved with appropriate data collection and publication from the RACF sector.
The committee agrees with the views so well expressed by the Carnell Paterson review and the Aged Care Taskforce on the need for data collection. The committee believes the subsequent recommendations of those bodies, if implemented, would be important first steps to ensure that data collection supports ongoing research, clinical best-practice and consumer choice.
Regulation of AINs
As outlined in chapter two, nursing professional bodies noted that the increasing prevalence of co-morbidities within the aged population requires more complex care that, under the nursing scope of practice, can only be provided under the direct supervision of a RN. This means that personal care workers or people who have similar titles that provide traditional care elements should be considered as AINs.
The Australian College of Nursing recommended that AINs be regulated under the same registration scheme as doctors and nurses, the National Registration and Accreditation Scheme (NRAS) which is undertaken by the Australian Health Practitioner Regulation Agency.
The Coalition of Australian Governments (COAG) Health Council considered the issue of registering care workers under NRAS, but instead developed a 'negative licensing regulatory scheme' for healthcare workers in the form of a National Code of Conduct for health care workers. This form of regulation does not apply high barriers to entry to practice, but allows for action to be taken against a health care worker who fails to comply with proper standards of conduct or practice.
It is unclear whether personal care workers in RACFs are covered by the National Code of Conduct for health care workers. The Australian Law Reform Commission noted in its examination of the code that AINs are covered by the code. However, notwithstanding the views of nursing professional bodies, it is less clear whether a personal care worker or an aged care worker falls within the definition of a person who provides a 'health service'.
The Australian Law Reform Commission considered that all aged care workers who provide direct care services should be covered by the National Code of Conduct and considered that legislation should be enacted to ensure that these workers are covered by the relevant definition.
Other stakeholders considered that more stringent regulation was required. The Aged Care Taskforce considered whether personal care workers should be included under the National Code of Conduct for health care workers. Similarly to the Australian Law Reform Commission, it found that the National Code of Conduct did not extend enough to include personal care workers within its remit. In addition, it considered that National Code of Conduct itself did not meet the more stringent standards of a national registration process, because it lacks minimum training standards and continuing professional development requirements.
The Aged Care Taskforce made a number of recommendations linked to an industry code of practice that would include an industry-led workforce accreditation system and centralised registration to ensure that all workers have completed mandatory police checks and are trained and accredited to work with aged care consumers.
The Older Persons Advocacy Network pointed to low-impact regulation of other professions such as electricians and plumbers, and wondered why there could not be regulation of aged care workers 'who are delivering such an important role'. The Older Persons Advocacy Network went on to recommend workforce regulation should address poor performers moving between employers, training standards and ongoing professional development.
Bupa recommended a national registration scheme for AINs with a minimum level of qualification, but did not provide detail on how this should operate.
The committee considers that there needs to be additional regulation of personal care workers and aged care workers in RACFs. The committee notes that full NRAS registration may not be necessary, but that at minimum, people providing direct care should be covered by the National Code of Conduct for health care workers. The committee considers that a central registry may be desirable.