This inquiry was initially established in June 2017 in response to incidents of poor quality care and abuse of residents at the Makk and McLeay wards of the Oakden Older Persons Mental Health Facility (Oakden) in South Australia (SA). These two wards were classified as aged care facilities, and were therefore regulated by the Commonwealth aged care regulation frameworks. The inquiry was intended to review the critical care failures at Oakden in relation to the level of accountability that may lie with the Commonwealth aged care regulatory frameworks, which have a responsibility to ensure vulnerable aged Australians receive quality care and are protected from abuse.
The tragic incidents at Oakden have been used as a spotlight on aged care, and were recently described by the newly appointed Aged Care Quality and Safety Commissioner as 'a shock wave' which sent a 'wake-up call to providers and to consumers but also to the regulators, and that sent people to look at regulation best practice...in a more searching fashion'.
However the view that the regulator and provider responses to Oakden were swift and searching is not supported by other events. In the nearly two years since the incidents at Oakden became public, much more evidence has come to light of poor care, service provider non-compliance and regulatory failures, and the Australian Government is now undertaking a Royal Commission into aged care due to 'non-compliance and abuses and failures of care'.
During the course of the inquiry, the Senate Community Affairs References Committee (committee) was presented with compelling evidence which pointed to systemic issues that negatively impact the quality of aged care services, not only at Oakden but throughout Australia. This evidence pointed to failures of care within residential aged care facilities (RACFs) across a range of different areas, from personal and clinical care standards, nutrition and social inclusion, to rehabilitation and palliative care.
The substandard clinical care provided to residents of Oakden was raised as the key issue of concern in the investigation report of the SA Chief Psychiatrist, The Oakden Report – The report of the Oakden Review. The subsequent review commissioned at a federal level, the Review of National Aged Care Quality Regulatory Processes (Carnell Paterson review), found that the issues that resulted in clinical care failures at Oakden were 'failures that any service could be vulnerable to' and that 'Oakden is not unique, because the characteristics and needs of its residents were not unique'.
Throughout this inquiry, the standard of clinical care provided to people in RACFs stood out as a key issue of concern for the committee, particularly as an area which has lacked sufficient investigation to date.
On 13 February 2018 the committee published an interim report which concentrated on the critical care failures at the Oakden facility, and whether the Commonwealth regulatory environment held any responsibility for those continuing care failures. In its interim report the committee found:
Services at Oakden included appallingly sub-standard clinical and personal care, as well as abusive practices, some of which have been reported as criminal acts. Evidence of this sub-standard care was noticeable to anyone who cared to pay attention, but it seems that no-one in a position to effect change wanted to pay the required attention.
The committee also identified a number of concerns that relate to the regulation of quality of care within RACFs across Australia by the Australian Aged Care Quality Agency (Quality Agency). The committee found:
[M]any of the submitters and witnesses to this inquiry have raised concerns that the oversight and regulation failures, which allowed the poor conditions at Oakden to continue for so long, are not isolated to the specialised type of service delivery at Oakden, and that the same regulatory failures can be seen more widely across the aged care sector... a significant body of evidence has been presented to this inquiry which highlights a broad range of problems with the quality oversight and regulation framework.
Key issues of national concern that were identified in the interim report include:
The overall approach to compliance to minimum standards by individual providers does not support sector-wide capacity building or encourage improvements beyond the minimum benchmarks.
There is not an accreditation process specific to aged care services with specialist elements of mental health or behavioural and psychological symptoms of dementia (BPSD) services.
There is a clear schism in how the aged care sector defines different levels of aged care services as personal care as opposed to clinical or medical care, and therefore the level of clinical governance required for that care.
Accreditation auditors do not necessarily have a background in clinical care, and may not be best placed to audit clinical care standards.
Clinical governance within the aged care sector is significantly less developed than in the health care sector.
Rates of physical and chemical restraint are too high and these practices are largely unregulated in the aged care sector.
Workforce pressures impact on care standards, including both a lack of a suitably trained workforce as well as staffing levels within individual RACFs.
A lack of data on quality of care is a significant barrier to ensuring an appropriate quality framework for aged care services.
Complaints handling, by individual RACF providers and by the Commonwealth aged care regulatory regime, is done poorly and the adversarial nature does not support open disclosure and industry-wide collaboration and improvement of care standards.
The committee considers there is one overarching regulatory failure which underpins the above issues: the lack of appropriate regulation of clinical care standards within RACFs.
Further, the committee's interim report highlighted that a key cause of the lack of appropriate standards of clinical care appears to be a definitional one. There is a fundamental differing of opinion across stakeholders within the delivery of aged care services as to whether RACFs are health care related services, or merely accommodation services where residents may elect to receive (and oversee) their own health services. Views range from seeing the monitoring of clinical care standards as central to the role of the aged care regulators, to viewing aged care as an accommodation service where the provision of clinical care is outside the remit of RACF providers, as it is a professional service matter between a resident and their chosen health professional.
The committee outlined this conflict in its interim report:
The committee notes the evidence shows this issue is not isolated to Oakden. The evidence presented to this inquiry shows there is significant conflict within the aged care sector as to the definition of the care being provided, who is responsible for providing appropriate clinical care in RACFs, and which agencies should have quality oversight responsibility of that care.
The current impasse cannot continue and needs to be resolved.
Recent reports, reviews and reforms
This inquiry has taken close to two years to come to completion. During that time there has been a significant shake-up in how RACFs operate and are overseen, and aged care has since been placed forefront in the national agenda through the establishment of a Royal Commission.
As noted in the interim report, the number of recent reviews and inquiries into various aspects of aged care service delivery is a compelling argument that the regulatory system is failing to provide adequate oversight of the aged care sector. However, it is important to assess the likely impacts of the significant reforms undertaken and still underway to establish whether these changes are likely to be successful in resolving ongoing clinical care issues in the RACF sector.
The findings of these reviews, as well as recent regulatory reforms, are summarised below as they relate to clinical care standards in RACFs.
Reviews of aged care
A number of recent reviews of aged care have investigated various aspects of aged care service delivery, and each of them has raised concerns with the standards of clinical care in RACFs:
A 2018 House of Representatives Committee inquiry into RACFs found 'major deficiencies within the aged care sector' and made a number of recommendations to improve clinical care, such as a mandated Registered Nurse on duty at all times, expansion of data captured under indicator programs and new legislation to regulate restrictive practices.
The Oakden Report – The report of the Oakden Review conducted in 2017 by the SA Chief Psychiatrist, Dr Alan Groves, found service and care deficiencies such as an inappropriate model of care, clinical staff deficiencies, governance failures and inappropriate and unlawful use of restrictive practice at Oakden. The 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 Carnell Paterson review, published in October 2017, made a number of recommendations regarding the regulation of clinical care in RACFs, including reforms to establish an independent Aged Care Quality and Safety Commission to centralise accreditation, compliance and complaints handling, limit the use of restrictive practices, implement unannounced accreditation visits and strengthen assessment processes.
The Australian Law Reform Commission's June 2017 report into elder abuse recommended the development of a National Plan to combat elder abuse, establishing a serious incident response scheme for RACFs, regulation of care workers and regulating restrictive practices.
Recent reforms of aged care regulation
As well as a number of smaller reforms, two key reforms have been put in place to improve the regulation of the RACF sector.
Aged Care Quality and Safety Commission
As recommended by the Carnell Paterson review, on 1 January 2019 the Aged Care Quality and Safety Commission (Aged Care Commission) replaced the Quality Agency and Aged Care Complaints Commission by bringing these functions together into the Aged Care Commission. Importantly for clinical care standards, the Aged Care Commission includes the newly-established position of Chief Clinical Advisor.
Single Aged Care Quality Framework
The Single Aged Care Quality Framework (Single quality framework) will come into effect on 1 July 2019 and will become the standards by which RACF services are regulated. Of the eight standards, two are relevant to this inquiry: Standard 3 – Personal care and clinical care, and Standard 8 – Organisational governance.
More reform consultations flagged by Department of Health
In reviewing the legislation to establish the Aged Care Commission, the Senate Community Affairs Legislation Committee acknowledged that the legislative change to establish the new commission was only the first stage. Many stakeholders recommended the objects and functions of the new commission should be 'expanded beyond the current proposal to merge the existing functions of the Quality Agency and Complaints Commissioner' and that the Department of Health has indicated a second tranche of consultations will include discussion of 'opportunities for enhancements of the Commission'.
Royal Commission into Aged Care Quality and Safety
The most significant indication that the Australian Government does not consider the recent reforms to have solved the regulatory concern, is the announcement of the Royal Commission into Aged Care Quality and Safety (Aged Care Royal Commission) in response to 'a very disturbing trend in what is happening in terms of non-compliance and abuses and failures of care that have been occurring across the sector'.
The Aged Care Royal Commission will investigate the quality of aged care services and the prevalence of abuse, however the Terms of Reference (ToR) do not articulate whether or not that includes clinical care provided by nurses or allied health professionals within RACFs, and may not cover either access to external health care or how the aged care sector intersects with the primary health and acute care sectors. The ToR have a strong focus on recommendations for improvements to ensure aged care services are sustainable, meet future service challenges, and are flexible and person-centred.
Focus of continued inquiry
The numerous recent inquiries and reviews described above are important in building a picture of aged care in Australia. However they have not placed an emphasis on the standards of clinical care in RACFs nationally. They have looked at 'care' more broadly to include personal care, or have investigated single critical events.
The final stage of this inquiry has focussed on the sector-wide standard of clinical care provided to people in RACFs, which remains a key concern for the committee. The ToR for this inquiry include the appropriate role of the Commonwealth aged care regulatory environment to ensure proper clinical standards within RACFs across Australia.
This final report takes into account the recent regulatory reforms and the ToR for the Aged Care Royal Commission, but notes that the reforms to date have not yet fully addressed the regulatory failures which led to the incidents at Oakden, and which have been shown by evidence to be replicated, at some level, in many RACF locations across Australia.
Following this introductory chapter, this report consists of four subsequent chapters:
chapter two discusses the delivery of clinical care within the residential aged care context, providing an overview of what is clinical care, who delivers clinical care, and who has responsibility for the standards of clinical care;
chapter three discusses the regulation of clinical care within RACFs in its current form, noting the recent reforms to the regulator and the aged care standards and outlining the continuing concerns of stakeholders;
chapter four discusses the intersection of aged care with external allied health, primary health and acute care sectors; and
chapter five contains the committee's concluding comments and recommendations.
Where external issues relating to the general improvement of clinical care are raised, they will be discussed in terms of what is the regulator's role in this issue. Some high level issues of concern raised within this inquiry that lie outside the scope of the regulatory environment will be flagged for ongoing consideration in other fora.
Conduct of the inquiry
First stage of inquiry
On 13 June 2017 the Senate referred this inquiry to the committee with a reporting date of 18 February 2018 and the following Terms of Reference:
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 adequacy and effectiveness of complaints handling processes at a state and federal level, including consumer awareness and appropriate use of the available complaints mechanisms;
concerns regarding standards of care reported to aged care providers and government agencies by staff and contract workers, medical officers, volunteers, family members and other health care or aged care providers receiving transferred patients, and the adequacy of responses and feedback arrangements;
the adequacy of medication handling practices and drug administration methods specific to aged care delivered at Oakden;
the adequacy of injury prevention, monitoring and reporting mechanisms and the need for mandatory reporting and data collection for serious injury and mortality incidents;
the division of responsibility and accountability between residents (and their families), agency and permanent staff, aged care providers, and the state and the federal governments for reporting on and acting on adverse incidents; and
The inquiry was advertised on the committee's website and the committee wrote to stakeholders inviting them to make submissions, to be lodged by 3 August 2017. Submissions continued to be accepted after this date. The committee agreed that, to protect the privacy of individuals providing sensitive material, all submissions from private individuals would be accepted as confidential, unless requested otherwise.
The committee held two public hearings, on 21 November 2017 in Adelaide and on 5 February 2018 in Canberra. The committee also held a confidential hearing in Adelaide on 22 November 2017.
An interim report, discussed earlier in this chapter, was released on 13 February 2018 and on the same day the Senate granted an extension of time for reporting until 28 November 2018. On 28 November 2018, the Senate granted an extension of time for reporting until the last sitting Wednesday in March 2019. On 5 December 2018, the Senate granted an extension of time for reporting until 3 April 2019.
Final stage of inquiry
On 22 October 2018, the committee called for further submissions by 30 November 2018, and published the following note on the website to clarify the focus of continued inquiry:
The 13 February 2018 interim report for this inquiry focused on the aged care regulatory failures that contributed to the substandard, and in some cases criminally abusive, aged care provided to residents at the Oakden Older Persons Mental Health Facility in South Australia.
To complement the work of the recently announced Royal Commission into Aged Care and the Carnell Paterson Review of National Aged Care Quality Regulatory Processes, the committee has agreed its continuing inquiry will focus on term of reference a, with an emphasis on the regulation of clinical, medical and allied health care in the aged care context.
A further hearing was held in Canberra on 15 February 2019.